A  TREATISE 


ON  THE 


AMERICAN  LAW  OF  ELECTIONS 


BY 


GEORGE  W.  McCRARY, 

<  I 

IiATB  JUDGB  OF  THE  UNITED  STATES  CIRCUIT  CIOURT,   ElOHTH  CntaUOf 

AND  Formerly  Member  of  the  House  of  REPRESENTATim 
OF  THE  United  States,  and  Chairman  of  the  Com- 
mittee OF  Elections  or  that  Body. 


FOURTH  EDITION 

E0IT£D  BY 

HENRY  L.  McCUNE, 

Of  the  Kansas  City  Bab. 


CHICAGO: 

CALLAGHAN  &  CO. 

1897. 


JK  /^  fc/ 

A1  5 


Entered  according  to  the  act  of  Congress,  in  the  year  1876, 

By  GEO.  W.  McCRARY, 
in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  the  act  of  Congress,  in  the  year  1880, 

By  GEO.  W.  McCRARY. 
in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  the  act  of  Congress,  in  the  year  1887, 

By  GEO.  W.  McCRARY, 
in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


COPYKIGHT,  1897, 
BY 

CALLAGHAN  &  CO. 


DEDICATION 


TO  THE  HONOBABUI 

SAMUEL  F,  MILLER,  LL,  D., 

ABSOCIATB    JUSTICE    817FRBME    COURT   UNITED  STATES,  THIS  TREATISE   IS 

MOST   RESPECTFULLY    DEDICATED. 

HIS  GREAT  liBABNINO   AND    ABILITY    AS   A   LAWYER,  Aim  AS  A 

JUDGE;   HIS  HIGH  CHARACTER  AS  A  MAN  AND  AS  A  CITIZEN; 

AMD  THE  LASTING   OBLIGATIONS   I   AM    UNDER   TO    HIM 

FOR     GENEROUS     AID     AND     INSTRUCTION     AS     MY 

TEACHER   IN   THE  LAW,  AND  FOR  AN  EARNEST 

FBIENDSHir  CONTINUING   THROUGH  MANT 

TEARS,   ALL  COMBINE  TO  MAKE    THIS 

RECOGNITION  AND   ACKNOWLEDQ- 

MENT   BOTH    A    DUTY   AND    A 

PLEASURE,  ON  THE  PART 

OV  HIS   FRIEND  AND 

FUFIL. 

Tbb  AuraoB. 


A  Q  Q  O  \  "■' 

^  v  O  >v  -i  i 


PREFACE 

TO  THE  THIRD  EDITIOK. 


This  work,  as  originally  published  in  1875,  was  the  ftrst  atlewpt 
in  this  country  to  bring  together,  arrange  and  consider,  ia  con- 
venient form,  and  under  proper  heads,  the  scattered  adjadieations 
relating  to  the  law  of  elections.  The  purpose  was  not  only  to 
aid  the  bar  and  bench  in  the  preparation,  trial,  and  deciMOQ  of 
cases  of  contested  elections,  but  also  to  diminish  the  number  of 
such  contests  by  furnishing  information  both  to  election  o£5eerc 
and  to  voters,  as  to  their  respective  powers,  rights  and  duties. 
The  work  has  been  received  with  greater  favor  than  was  antici- 
pated. The  first  and  second  editions  having  been  exhausted,  it 
has  been  thought  expedient  to  prepare  a  third,  much  enlarged, 
and,  it  is  believed,  more  conveniently  arranged.  As  this  is  the 
only  work  of  this  character  extant  in  this  country,  there  would 
seem  to  be  good  reason  for  its  revision,  enlargement  and  re- 
publication, notwithstanding  the  prevailing  and  generally  well 
founded  prejudice  against  the  multiplication  of  books  of  law. 

The  subject  treated  is  of  great  impcMrtance  especially  to  the 
people  of  the  United  States.  In  a  country  like  ours,  where 
most  of  the  powers  of  government  reside  with  the  people  and  are 
delegated  to  representatives  chosen  by  means  of  the  ballot  and 
who  generally  serve  only  for  short  periods,  making  necessary  a 
frequent  appeal  to  the  popular  will;  and  where  the  decisions 
reached  by  this  means  are  often  so  important,  it  is  inevitable  that 
controversies  growing  out  of  elections  must  be  numerous,  and  it 
is  manifestly  a  matter  of  great  consequence,  that  the  principles 
which  are  to  control  in  their  determination  should  be  understood, 
not  only  by  the  legal  profession,  but  also  as  far  as  poaable  by 
the  people  generally. 


VI  PEEFACE. 

The  work  was  originallj  undertaken  in  view  of  the  fact  that 
the  law  upon  this  subject,  as  determined  by  the  decisions  of 
courts  and  other  tribunals  having-  jurisdiction  of  such  questions, 
was  only  to  be  found  by  searching  through  many  hundreds  of 
volumes  of  reports,  thus  rendering  the  task  of  collecting  and  ex- 
amining them  very  tedious  and  laborious.  Under  these  circum- 
stances it  was  thought  that  a  brief  and  clear  statement  of  the 
principles  and  rules  touching  this  subject  which  have  been  set- 
tled, and  a  citation  of  the  authorities  where  they  may  be  found 
more  fully  discussed,  would  prove  very  acceptable;  and  the  rapid 
sale  of  the  first  and  second  editions  would  seem  to  show  that  this 
expectation  has  been  realized. 

The  work  is  entitled  The  American  Law  of  Elections. 
The  authorities  cited  are  chiefly  American  authorities.  Upon 
this  subject  we  are,  from  the  very  necessities  of  the  case,  building 
up  an  American  common  law. 

It  is  not  asserted  that  the  English  authorities  are  of  no  value 
upon  this  branch  of  the  law.  On  the  contrary  they  have  been 
freely  cited  whenever  deemed  applicable  and  useful.  It  was 
deemed  proper,  however,  to  keep  steadily  in  view  the  fact  that 
the  genius  of  our  institutions,  the  character  of  our  political  sys- 
tem, and  the  principles  upon  which  the  right  of  suffrage  in  this 
country  is  founded,  all  difiFer  so  radically  from  those  of  England 
as  to  diminish  very  greatly  the  value  of  English  precedents  in 
election  cases;  and  the  efFort  has  been  to  show  that  our  own 
tribunals  have  by  a  long  course  of  judicial  decisions,  settled  the 
law  of  this  country,  as  it  relates  to  the  questions  treated,  upon  a 
firm  and  lasting  basis. 

The  thanks  of  the  author  are  due  to  Fred  P.  Barnett,  Esq.,  for 
valuable  assistance  in  the  arrangement  of  the  matter  for  this 
edition,  and  in  editing  the  same,  as  well  as  in  the  prepanUioa  of 
the  table  of  contents,  table  of  cases,  and  index. 

Kansas  Citt,  Missoubi,  1887. 


EDITOR'S  PREFACE. 


Shortly  after  the  death  of  Judge  McCrary  in  June,  1890, 
there  came  into  my  possession  certain  memoranda  which  he 
had  intended  for  use  in  preparing  a  new  edition  of  this  work. 
The  thought  of  preserving  this  material  led  me  to  consider  the 
propriety  of  supplementing  it  with  my  own  work  sufl&ciently  to 
produce  an  acceptable  new  edition.  That  which  was  at  first  a 
sentiment  has  since  seemed  a  necessity,  partly  on  account  of  the 
natural  accumulation  of  decisions  bearing  upon  this  subject, 
but  chiefly  because  of  the  general  adoption  by  the  different 
states  (since  the  issuance  of  the  third  edition)  of  the  Australian 
Ballot  System.  This  subject  has  of  necessity  been  treated  in  a 
new  chapter,  A  chapter  has  also  been  added  in  which  will  be 
found  a  consideration  of  the  origin  and  nature  of  suffrage  in 
this  country,  and  the  doctrine  of  sovereignty  as  it  exists  in  the 
United  States.  The  new  matter  has  been  carefully  distinguished 
from  the  original  text.  New  sections  when  inserted  in  old 
chapters  bear  the  number  of  the  last  preceding  section  with  a 
small  italic  letter  (a,  6,  etc.)  added.  All  new  matter,  whether  in 
the  text  or  notes,  except  new  chapters  I  and  XXII,  is  distin- 
guished by  inclosure  in  brackets. 

It  affords  me  pleasure  to  acknowledge  here  my  obligation  to 
Mr.  James  De  Witt  Andrews,  of  the  Chicago  bar,  for  valuable 
assistance  in  the  preparation  of  the  first  chapter,  and  to  George 
H.  McCrary,  son  of  the  author,  for  constant  and  intelligent  co- 
operation. H.  L.  MoC. 

Fbbbuaet  18, 1897. 


CONTENTS. 


CHAPTER  I. 

THE  RIGHT  TO  VOTR 

Suffrage  defined §1 

The  object  of  suffrage 2 

The  right  to  vote  not  of  necessity  connected  with  citizenship     .  3 

Suffrage  not  a  natural  right 4 

The  doctrine  as  stated  in  the  case  of  Anderson  v.  Baker     ...  5 

As  stated  in  the  case  of  Blair  v.  Ridgely t 

The  right  to  vote  distinguished  from  the  right  to  practice  a  pro- 
fession or  calling 7 

Electors  may  be  disfranchised  by  constitutional  provision      .     .  8 
The  American  and  English  theories  of  the  right  to  vote  distin- 
guished         9 

In  the  United  States,  the  right  of  suffrage  depends  upon  the  will 

of  the  people 10 

Who  are  the  people 11 

Declarations  upon  the  subject  contained  in  the  Declaration  of 

Independence  and  in  preambles  to  constitutions      ....  12 

The  theories  of  early  speakers  and  writers 13 

Conclusion  from  the  foregoing 14 

Arguments  of  counsel  in  Chisholm,  Ex'r,  v.  State  of  Georgia  .     .  15 
View  of  the  Supreme  Court  of  the  United  States  in  Penhallow  v. 

Doane's  Adm'rs 16 

Doctrine  as  stated  by  Judge  Taney  in  Dred  Scott  v.  Sanford  .     .  17 
At  the  time  of  the  formation  of  the  Union,  the  people  were  the 

citizens,  independent  of  age  or  sex 18 

How  did  the  Constitution  become  binding  upon  the  people     .     .  19 

The  theory  of  consent  by  ratification 20 

View  of  the  Supreme  Court  of  the  United  States  in  Inglis  v. 

Trustees  of  Sailor's  Snug  Harbor 21 

View  of  the  same  court  in  Ware  v,  Hylton 22 

The  provisions  of  constitutions  binding  upon  all  citizens,  irre- 
spective of  age  or  sex 23 

Have  the  people,  by  constituting  the  electors,  surrendered  the 

sovereignty 34 


X  CONTENTa 

View  of  Supreme  Court  of  Pennsylvania  in  case  of  Wells  v. 

Bain,  to  the  efifect  that  the  sovereignty  still  resides  in  the  en-  / 

tire  citizenship §  25  ^ 

The  same  view  expressed  in  Anderson  v.  Baker,  by  Supreme 

Court  of  Maryland 26  ^ 

An  investigation  of  the  question  from  a  practical  standpoint     .  27 

Same  subject  continued 28 

Is  the  body  politic  sovereign  only  in  theory,  or  is  it  also  sovereign 

as  a  practical  fact 29 

Same  subject  continued 30 

The  right  to  fix  the  qualifications  of  voters  is  in  the  people  of 
the  respective  States,  subject  to  limitation  contained  in 

Fifteenth  Amendment 31 

Qualifications  of  electors  determined  by  the  people  in  constitu- 
tional conventions 32 

Power  of  the  people  to  limit  the  discretion  of  voters  in  the 

choice  of  persons  to  fill  offices 33 

Inability  of  the  people  to  withdraw  political  power,  except  in 

the  manner  provided  by  Constitution 34 

Exercise  of  the  elective  franchise  by  a  portion  of  the  commu- 
nity a  fair  and  useful  restriction 35 

CHAPTER  II 

THE  RIGHT  TO  VOTE— HOW  PRESCRIBED  AND  REGULATED. 

Power  of  the  States  and  of  the  United  States  to  fix  qualifications  §  36 
Power  of  the  State  limited  by  the  Fifteenth  Amendment  to  the 

Constitution  of  the  United  States 36 

State  regulations  followed  by  Federal  government 87 

Except  such  as  confiict  with  Federal  Constitution  or  laws     .     .  37 

Qualifications  of  voters  for  Presidential  electors 88 

Nature  and  extent  of  power  of  Congress  over  suffrage       ...  39 

Rights  conferred  by  Fifteenth  Amendment 40, 41 

Power  of  Congress  thereunder 40, 41 

Decisions  of  United  States  Supreme  Court .  43 

Regulation  of  Federal  elections;  power  of  Congress      ....  43 

Punishment  of  fraud  in  Federal  elections  .     . 43,  44 

Regulation  of  Territorial  elections 45 

Nature  of  right  of  suffrage  and  whence  derived 46 

Legislature  cannot  add  to  or  alter  constitutional  qualifications  47 

Change  of  election  districts 47 

Right  to  representation  in  government  cannot  be  impaired  or 

taken  away 48, 49,  51,  52 

Voter  may  be  questioned  as  to  qualifications 50 

Validity  of  acts  prescribing  test  oaths 53-56 

Act  authorizing  Governor  to  impair  right  of  suffrage  void     .     .  57 


CONTENTS.  XI 

Regulations  must  be  reasonable §  58 

Distinction  between  regulation  and  impairment  of  the  right  to 

vote 58-62 

Casting  vote  in  case  of  tie 62 

Right  may  be  limited  to  male  citizens 63 

But  may  by  constitutional  provision,  or  sometimes  by  legislative 

act,  be  extended  to  females 63 

But  only  upon  same  terms  and  conditions  as  are  applied  to  males  63 
And  cannot  be  extended  by  statute  to  females  when  construct- 
ively limited  to  males  by  constitutional  provision  ....  63a 
Construction  of  Fourteenth  Amendment  to  the  Constitution  of 

the  United  States 64 

In  what  States  women  may  vote 64a 

Constitution  of  New  Jersey  of  1776  permitting  female  suffrage  .  64& 

CHAPTER  III. 

QUALIFICATIONS  OF  VOTER& 

Usual  qualifications  enumerated §65 

Meaning  of  word  "  inhabitants  " 66 

Citizenship 66-68 

Effect  of  Treaty  with  Mexico  upon  statxis  of  inhabitants  of  ac- 
quired territory 69 

Naturalization 70-83 

Power  of  Congress  exclusive 70 

Summary  of  naturalization  laws 71 

What  courts  may  grant  naturalization 72-74 

Proceedings  in  court  required 75 

Judgment  final 76 

How  fact  of  naturalization  may  be  proved 77-79 

Where  no  record  of  naturalization  can  be  produced      ....      79a 

Who  may  be  naturalized 80, 81 

Residence  required 82 

Also  good  moral  character 83 

Construction  of  act  of  Congress  of  April  14,  1802,  as  to  rights  of 

certain  minors 84, 85 

Collective  naturalization 85a 

Status  of  child  of  alien  parent  who  has  filed  declaration  but  neg- 
lected to  perfect  his  naturalization 855 

Children  born  abroad  whose  parents  are  citizens 86 

CHAPTER  IV. 

QUALIFICATIONS  OF  YOTEHS  — Continued. 

Residence  always  required §  87 

Residence  defined 88 

Residence  at  United  States  Navy  Yard,  Arsenal,  or  the  like    .     .        89 


Ill  CONTENTS. 

Residence  of  soldiers §  90,  91 

Reeidence  within  Indian  or  military  reservation 92,  93 

(     inge  of  residence 94,  95 

Temporary  removal 96-100 

Residence  and  domicile  synonymous 98 

Residents  of  students  at  college 101-103 

Importance  of  the  question  of  intention 102, 103 

Paupers  abiding  in  a  public  almshouse 104 

A  prison  not  a  place  of  residence 104a 

The  intention  to  remain  at  a  particular  place 105 

Rules  oi  evidence 106 

Payment  of  tax 107 

Mode  of  assessing  tax 108, 109, 112, 118 

Payment  by  agent 110 

Persons  exempted  from  payment  of  taxes Ill 

Definition  of  phrase  "  housekeepers  and  heads  of  families  "    .     .      114 

Mental  capacity  required 115, 118 

Rule  in  Kentucky  as  to  deaf  mutes 117 

CHAPTER  V. 

DISQUALIFICATIONS  OF  VOTERS. 

Disfranchisement  as  a  punishment  for  crime  not  cruel  or  un- 
usual       §  118 

Infamous  crimes 119-121 

Dueling 119,120 

Sending  or  accepting  a  challenge  to  fight  a  duel 119, 120 

Effect  of  sentence  of  fine  under  act  authorizing  fine,  or  imprison- 
ment in  the  penitentiary 120 

Conflicting  decisions 120 

Discussion  as  to  meaning  of  "  infamous  crime  " 121 

Decisions  of  United  States  Supreme  Court 121 

Desertion  from  military  service 122 

Effect  of  act  of  Congress  of  March  3,  1865 122 

Judgment  of  a  court  of  competent  jurisdiction  after  trial  neces- 
sary   133 

The  question  is  judicial  and  must  be  decided  by  the  courts  .  .  124 
Record  of  conviction  must  be  produced  before  election  oflScers  .  124 
Effect  of  pardon 125 

CHAPTER  VL 

REGULATIONS. 

Must  be  reasonable ,§  126 

Must  regulate,  and  not  impair,  the  right  to  vote 126 

Registration  laws  constitutional 127-134 


CONTENTS.  XIU 

May  operate  only  in  certain  cities  and  villages §  138 

Distinction  between  regulation  and  subversion  of  right     ...       139 
Validity  of  acts  requiring  registration  prior  to  day  of  election    130, 131 

Conflicting  decisions 133 

Weight  of  authority  sustains  validity  of  such  acts 138 

All  regulations  must  be  reasonable 133 

Decision  in  Massachusetts 134 

Provisions  of  registry  law  cannot  be  disregarded 135 

Denial  of  right  of  registration 186-138 

Mode  of  conducting  registration 139 

Notice 139 

Change  of  place 139 

Statutes  prescribing  mode  of  proceeding  generally  directory  .     .      140 

Legal  voter  not  prejudiced  by  irregularities 140 

Proof  required  of  unregistered  voter 141 

Nature  and  extent  of  power  of  Congress  to  prescribe  regulations      143 

Constitutionality  of  Enforcement  Act 143, 144 

Implied  power  of  Congress  over  Federal  elections    .     .     •     .    145, 146 

CHAPTER  VII. 

REGULATIONS  —  Continued. 

Statutory  regulation  necessary §  147 

Regulation  of  election  of  Senators  in  Congress 148, 149 

Mode  of  conducting  such  election 150 

Act  of  July  35,  1866 151, 153 

Time  and  place  of  all  elections  must  be  prescribed 153 

Invalidity  of  statutes  authorizing  a  soldier  to  vote  while  absent 

from  his  residence 153-157 

Change  of  voting  place 158, 159 

Adjournment  of  election 160, 166 

Premature  closing  of  polls 161 

Keeping  polls  open  after  lawful  hours 163-165 

Persons  not  voting  generally  bound  by  result 167 

Exceptions  to  this  rule 168-170 

Fraudulent  organization  of  election  board 171 

Irregular  reception  of  legal  votes 173 

Mode  of  voting  where  separate  boxes  are  provided  by  law  for 

State  officers  and  members  of  Congress 173, 174 

Voting  by  proxy  unknown  at  common  law,  but  allowed  in  cer- 
tain corporate  elections 175 

Time  and  place  are  of  the  substance 176 

Notice 177,188 

When  the  prescribed  notice  is  necessary  and  when  not      .     .     178-181 
Distinction  between  regular  and  special  election  as  to  notice  re- 
quired         183-185 


XlV  CONTENTS. 

Power  of  Governor  to  fix  time  and  place  of  holding  election  for 

Representative  in  Congress §  186 

Time  and  place  of  such  election  must  be  fixed  by  a  competent 

authority 186,187 

Power  of  Military  Governor 188 

Effect  of  change  in  Congressional  district 189, 190 

Validity  of  act  of  June  25,  1842 191 

Power  of  Congress  to  require  election  by  districts    ....     191, 192 

Application  of  registry  law  to  special  elections 193 

"  General  election,"  meaning  of  phrase  considered    ....     194, 195 

Mode  of  conducting  special  elections 196 

What  questions  may  be  submitted  to  popular  vote 197 

Local-option  laws 198-200 

Return  of  votes  after  time  prescribed 201 

Invalidity  of  partial  return 202 

Effect  of  irregular  transmittal  of  returns 203-205 

Plurality  generally  suflBoient  to  elect 206-208 

Meaning  of  "  a  majority  of  the  voters  of  a  county  " 208 

And  of  "  the  qualified  voters  therein  " 209 

Deciding  tie  vote  by  lot 210,  211 

Minority  representation  and  cumulative  voting 212 

Statutes  forbidding  use  of  money  to  influence  elections    .     .    213,  214 

Bribery 215-217 

Wager  upon  result  of  election 218,  219 

Contracts  tending  to  corrupt  elections 220 

Effect  of  irregularities 222-225 

Numbering  ballots 226 

What  statutes  are  mandatory 227-229 

And  what  directory 227-229 

Depositing  ballot  in  wrong  box 230-233 

Voting  by  mistake  in  wrong  precinct 234 

Adoption  of  erroneous  rule  by  officers  of  election  affecting  class 

of  voters 235 

Voter  not  generally  prejudiced  by  errors  or  mistakes  of  election 

officers 236-239 

Unconstitutional  police  regulations 240 

Effect  of  violence  towards  election  officers 341 

Effect  of  reckless  disregard  of  essential  requirements    ....      243 
Illustrations  of  rule  that  mere  irregularities  will  not  vitiate  an 

election 243 

Holding  of  elections  in  territory  acquired  from  foreign  govern- 
ment       244 

Holding  an  election  in  a  Territory  in  anticipation  of  admission 

into  the  Union 245 

Formation  of  State  Government  out  of  part  of  organized  Territory      246 
Effect  upon  remainder 247 


CX)NTENTS.  XV 

CHAPTEE  YIII. 

ELECTION  OFFICERS  — QUALIFICATIONS,  POWERS  AND  DU- 
TIES. 

Validity  of  acts  of  officers  de  facto §  247-252 

Color  of  authority  denied 253 

Temporary  departure  of  officer,  no  abandonment 254 

The  office  must  lawfully  exist 255 

State  and  Federal  officials  may  act  at  same  election  ....  256 
Paramount  authority  of  latter  with  respect  to  Federal  elections  257 
Liability  of  State  officials  under  act  of  Congress  in  certain  cases  256,  257 

Election  officers  not  to  be  interfered  with 258 

Duty  of  certifying  officer 259 

Duty  of  canvassing  officer 260 

"What  duties  are  ministerial 261 

Canvassers  can  receive  no  evidence  outside  of  returns  unless  ex- 
pressly authorized  by  law 262-266 

Canvassing  board  has,  in  general,  no  power  after  adjournment  to 

reconvene  and  recount  vote 267,  268 

But  may  be  compelled  by  mandamus  to  re-assemble  and  complete 

its  work  in  certain  cases 269,  270 

Amending  returns  under  statute  of  Massachusetts 271 

Partial  canvass  not  sufficient 272 

Governor  of  State  not  an  election  officer  within  meaning  of  act 

of  Congress  of  May  31,  1870 273 

Law  presumes  validity  of  official  acts  of  an  election  officer  .  .  274 
Adjournment  of  an  election  by  order  of  proper  officer  presumed 

to  be  valid 274,  275 

No  right  to  organize  independent  or  outside  polls 276 

Effect  of  division  of  election  precinct 277 

Facts  which  may  be  certified 278 

No  power  over  ballot  after  same  is  deposited 279 

Duty  of  town  clerk  under  law  of  New  Hampshire 280 

Opening  and  closing  polls 281 

Time  within  which  official  act  shall  be  performed 282 

Provisions  as  to  mode  and  manner  generally  directory      .     ,     .      283 

Number  of  voting  places 284 

Fraudulent  refusal  to  establish  voting  places 285,  286 

When  judges  may  refuse  to  administer  oath  to  voter  ....  287 
Failure  to  appoint  inspectors  of  election  within  time  required    .      288 

CHAPTER  IX. 

ELECTION  OFFICERS  — CIVIL  LIABILITY  FOR  MISCONDUCT 

IN  OFFICE. 

Wilful  and  corrupt  denial  of  right  of  voter §  289 

In  what  cases  malice  must  be  shown 289 

B 


XVI  CONTENTS. 

Rule  in  Massachusetts  and  Ohio §  289, 390 

Rule  in  Pennsylvania 291 

Rule  where  duty  is  grtasi-judicial 293 

Honest  mistake  by  registering  officer 293,  294 

Statutes  prescribing  specific  duties  must  be  obeyed  ....  295-397 
Duty  of  election  board  where  voter  offers  to  take  statutory  oath  295, 296 
What  will  amount  to  seasonably  placing  voter's  name  upon  the 

list 297 

Duty  of  voter  to  furnish  evidence  of  his  right 298 

Statements  of  voter  as  to  his  place  of  residence  may  be  proven  .      298 

Malice  not  presumed 299 

Evidence  that  officers  of  election  knew  that  plaintiff  differed 

from  them  in  his  political  sentiments 800 

Exemplary  damages,  when  allowed 801 

CHAPTER  X. 

OF  THE  PRIMA  FACIE  RIGHT  TO  AN  OFFICK 

Importance  of  the  subject §  80% 

The  person  holding  ordinary  credentials  presumed  elected  and 

allowed  to  act  pending  contest 808 

Credentials,  form  of 303 

Certificate  of  majority  of  certifying  board  sufficient     ....      804 

Credentials  of  members  of  Congress 305 

Who  may  issue 806 

Certificate  of  election  confers  vested  right,  but  does  not  oust 

jurisdiction  of  proper  tribunal 806-308 

Power  of  Governor  to  revoke  commission 807 

Power  of  lower  House  of  Congress  when  no  certificate  has  been 

issued  to  either  claimant 809-318 

Effect  of  certificate  showing  only  partial  canvass  .....  814 
Certificate  of  election  cannot  be  collaterally  attacked  .  .  .  315, 816 
Courts  of  equity  will  not  interfere  with  contested  election  case  .  817 
Further  discussion  as  to  effect  of  certificate  of  election     .     .    818-321 

CHAPTER  XL 

OF  ELIGIBILITY  TO  OFFICER  AND  OF  TENURK 

Qualifications  for  Federal  offices §  322 

Qualifications  for  State  offices 823,  833 

Qualifications  for  Representatives  in  Congress 824 

Meaning  of  the  term  "  inhabitant "  as  used  in  the  United  States 

Constitution 834 

Residing  abroad  as  representative  of  the  Government  of  the 

United  States 835 


CONTENTS.  XVll 

A  State  has  no  power  to  fix  qualifications  of  Representatives  in 

Congress §  326 

Effect  of  votes  cast  for  ineligible  candidate 327-331 

Effect  of  votes  cast  for  a  candidate  dying  on  day  of  election  .     .    331a 

The  English  rule 328 

Not  generally  adopted  in  this  country 828-330 

Decision  of  United  States  Senate 331 

Effect  of  conviction  for  crime 332 

Effect  of  an  offer  by  candidate  for  office  in  the  nature  of  a  bribe      333 
Effect  of  absence  while  engaged  in  discharge  of  duties  of  public 

office 334 

Holding  an  incompatible  office 835 

Incompatibility  defined 835, 336 

Holding  an  office  under  the  United  States 837 

Effect  of  acceptance  of  commission  in  military  service  upon  ten- 
ure of  member  of  Congress 338 

Effect  of  same  in  case  of  member  of  Congress  elected  but  not 

sworn  in 338, 339 

An  attorney  retained  in  a  particular  case  by  the  Attorney-Gen- 
eral of  the  United  States  not  an  officer  of  the  United  States    339a 
Acceptance  of  incompatible  office  equivalent  to  resignation     .      340 
Effect  of  being  a  candidate  for  two  incompatible  offices  at  same 

election 840a 

Lucrative  office 341 

Character  of  residence  required 843 

Election  of  alien  to  United  States  Senate  entirely  void      .     .     .      343 

Dueling  under  Constitution  of  Kentucky 844 

Conviction  necessary 344,  345 

Citizenship  necessary  whether  expressly  so  provided  or  not   .     .      346 
Legislature  cannot  add  to  constitutional  qualifications      .     .     .      847 

Abandonment  of  an  office 848 

Holding  over  until  successor  is  chosen  and  qualified      ...    849-351 

Resignation,  acceptance  not  necessary 352 

Tenure  during  good  behavior 858 

Right  to  hearing  before  removal 854 

Commission  of  crime  does  not  ipso /acfo  vacate  office  ....      854 

Power  of  removal 355 

When  judicial  declaration  of  vacancy  is  necessary  ....     856-358 

Vacancy  cannot  be  anticipated 359 

Vacancy  in  office  of  United  States  Senator 860 

Filling  such  vacancy  by  executive  appointment 861 

Member  of  Congress  may  resign  without  notice  to  the  House      .      362 

Declaration  of  vacancy  by  Governor 863 

Vacancies  that  may  happen  "  during  recess  of  the  Senate  "     .     .      864 
Discussion  as  to  construction  of  Article  2,  Section  2,  Clause  3, 

Constitution  of  the  United  States 864 


XVni  CONTENTS. 

Power  to  fill  vacancies  generally §  365 

Construction  of  Article  1,  Section  3,  United  States  Constitution  .  365 

In  what  cases  Legislature  may  fill  offices 366 

Right  of  incumbent  to  fees  and  emoluments 367 

In  this  country  appointment  or  election  creates  no  contract  for 

any  particular  period    .     .     .     .  • 368 

CHAPTER  XII. 

CONTESTED  ELECTIONS  —  TRIBUNALS  AND  REMEDIES. 

Quo  warranto,  common-law  jurisdiction §  369 

Special  tribunals 369 

Office  of  Governor 869 

Jurisdiction  of  Legislature 370 

Mode  of  proceeding  before  legislative  body 370 

Contestant  not  absolutely  necessary 371 

Construction  of  acts  of  Congress  regulating  mode  of  proceeding  372 

Such  acts  directory  only 373 

Certificate  of  election  prima  facie  only 374 

Sitting  member  not  entitled  to  vote 875,  376 

Jurisdiction  of  the  House  exclusive 377 

Jurisdiction  of  special  tribunals 878 

Courts  may  compel  them  to  act  by  mandamus 379 

Members  thereof  must  be  disinterested 379 

Power  of  legislative  bodies  to  judge  of  the  election  and  qualifica- 
tion of  their  own  members,  when  exclusive 380 

Jurisdiction  of  courts  in  absence  of  special  provision  of  law  .     .  381 
Such  jurisdiction  extends  to  a  contest  for  the  office  of  Governor 

of  a  State 382 

But  not  to  control  the  Governor  in  the  perforuiiance  of  official 

functions 383 

Mandamus  to  compel  canvassers  to  determine  and  certify  re- 
sult   884,385 

No  jurisdiction  in  equity  to  enjoin  holding  of  an  election       .     .  386 

Injunction  not  allowed  to  restrain  counting  of  illegal  votes  .     .  387 

But  may  issue  to  restrain  the  receipt  of  illegal  votes    ....  388 
Will  not  lie  to  restrain  recording  of  abstract  of  votes  co  gjround 

of  fraud 389 

Mandamus  in  State  court  to  compel  canvass  of  votes  cast  for 

Representative  in  Congress 390 

Trial  by  jury  not  allowed 891,392 

Quo  warranto,  when  issued  at  common  law 393 

Mode  of  proceeding 394 

Right  of  elector  to  contest,  given  by  statute,  does  not  oust  juris- 
diction in  quo  warranto 395 


CONTENTS.  XIX 

Quo  warranto  not  granted  merely  upon  showing  that  illegal 

votes  have  been  received §  396 

Discussion  as  to  proper  remedy  in  various  cases 397-413 

Remedy  by  mandamus  and  by  quo  warranto 397-400 

Mandamus  to  compel  county  oflScer  to  keep  oflSoe  at  county  seat      401 
Mandamus  not  granted  when  there  is  another  adequate  and  spe- 
cific remedy    403,403 

Nor  to  oust  the  incumbent  of  an  ofiice 404 

Nor  to  control  the  performance  of  judicial  duties  ....  405, 416 
But  is  sometimes  granted  to  compel  swearing  in  of  person  elected  406 
Or  to  compel  recognition  of  person  adjudged  elected  .  .  •  406,  409 
"Will  lie  to  compel  discharge  of  purely  ministerial  duties  .     .     406-411 

Mandamus  to  compel  appointment  in  certain  cases 410 

Also  to  compel  canvass  in  accordance  with  original  and  genuine 

returns 413 

No  answer  to  writ  to  show  that  returns  are  irregular  .  .  ,  ,  413 
Granting  or  refusal  of  writ  discretionary  with  the  court    .     .     .      414 

Oflfice  of  the  writ  of  mandamus 415 

Decision  of  board  of  canvassers  conclusive  in  collateral  proceed- 
ing     417 

Certificate  of  election  issued  under  mandamus  not  conclusive    418, 419 

Will  lie  to  compel  registration  of  legal  voter 430 

Not  generally  issued  to  compel  certificate  showing  election  of 

particular  person 431 

General  rules  stated 433, 433 

CHAPTER  XIII. 

CONTESTED  ELECTIONS  —  PROCEDURE. 

Practice  usually  governed  by  local  statutory  regulations  or  rules 

of  legislative  bodies §  434 

Information  in  quo  warranto 425 

Notice 426 

Must  be  served  within  time  prescribed .  437 

Rule  for  computing  time 438 

Specification  in  notice  of  grounds  of  contest 439 

Names  of  illegal  voters  need  not  be  stated 429 

Proof  of  service  of  notice 430 

Statutes  providing  for  contesting  elections  to  be  liberally  con- 
strued      481 

The  claimant  must  set  forth  a  meritorious  case 433 

Mode  of  verifying  grounds  of  contest     .........  433 

Requisites  of  petition  under  Ohio  statute 434 

Application  for  recount  of  ballots 485 

Statutory  mode  must  be  followed 446 


XX  CONTENTS. 

Requisites  of  pleading §  437-439 

Certainty  to  common  intent  only  required 440 

Amendments  must  be  made  without  delay 441-443 

Pleadings  in  special  statutory  proceedings 444 

What  issues  may  be  tried 445 

No  judgment  by  default  in  the  United  States  House  of  Repre- 
sentatives   446, 447 

Mode  of  proceeding  in  contested  election   cases  in  the  United 

States  House  of  Representatives 448-450 

Importance  of  riJe  requiring  sitting  member  to  proceed  with  dil- 
igence     451 

Extension  of  time  for  taking  of  testimony 453,453 

Parties  not  allowed  to  discontinue  or  compromise    .     .     ,     ,     .      454 

Interest  of  the  people  in  contested  election  cases 455 

Continuances  not  generally  allowed 456 

Where  contestee  dies  pending  contest,  proceedings  binding  on  his 

successor 456a 

State  law  followed  in  Congressional  contests 457 

Result  of  a  criminal  prosecution  not  considered  as  binding  on  the 

House 457a 

CoBts      . 458 

CHAPTER  XIY. 

CONTESTED  ELECTIONS  —  EVIDENCR 

Ordinary  rules  of  evidence  apply •     •  §  459 

Presumption  as  to  oflBcial  integrity 459 

Record  evidence 460 

State  laws  rules  of  decision  in  Congress 461 

When  necessary  to  prove  number  of  qualified  electors  in  given 

territory 462 

Census  of  population 463 

Official  list  of  freeholders  under  Virginia  statute 464 

Land  books  of  the  county  under  same 465 

Official  list  of  registered  voters 466 

Vote  accepted  by  the  judges  of  election  pWma/acte  legal      .     .     466a 

Presumption  that  person  alien  born  who  has  voted  was  qualified  467 

Want  of  naturalization,  how  established 468 

Fraudulent  naturalization  papers 468 

May  be  attacked  by  parol  evidence 469 

Proof  of  non-residence 460 

Registration  not  conclusive  of  right 470 

Ballots  as  evidence 471 

Provisions  for  safe  keeping  must  be  strictly  followed    ....  472 
Rule  as  to  proof  that  ballots  have  not  been  tampered  with     .     478, 474 


CONTENTS.  XXI 

Construction  of  statutes  requiring  preservation  of  ballots       .     .  §  475 

Recount 476, 477 

When  ballots  lose  their  character  as  primary  evidence       .     •     .      478 

Loss  or  destruction  of  ballots,  secondary  evidence 479 

Judge  Cooley's  views 480 

Importance  of  rule  requiring  proof  of  preservation  and  produc- 
tion of  the  identical  ballots  cast 481 

Inspection  of  ballot,  when  ordered 482 

Correction  of  return  by  reference  to  ballot 483 

Declarations  of  illegal  voters  as  to  how  they  voted  ....    483,  484 

Conflict  of  authority  as  to  their  admissibility 484 

The  English  rule 484 

Rule  in  New  York  and  Wisconsin 484 

Decisions  in  other  States 484 

Discussion  of  the  question  in  the  House  of  Representatives  of  the 

United  States ,     ,     485-487 

Preservation  of  secrecy  of  ballot 488,  489 

Voter  cannot  be  compelled  to  divulge  for  whom  he  voted  .  489-491 
But  this  rule  does  not  protect  one  who  votes  illegally  .     .     .     492-494 

Voter  may  waive  his  privilege 492 

Circumstantial  evidence  admissible 498 

Rule  as  to  disposition  of  illegal  votes  in  the  absence  of  proof 

showing  for  whom  they  were  cast 495 

When  new  election  should  be  ordered 496 

Consequences  of  neglect  to  furnish  proof  within  reach  of  party  497 
Ballots  marked  in  violation  of  law  generally  admissible  .  .  .  498 
Character  of  proof  required  to  vitiate  a  vote  received  and  counted 

by  the  election  board 499 

Weight  to  be  given  to  decision  of  judges  of  election     ....      500 

Canvass  by  city  council  jprima /acie  evidence 501 

General  rule  for  solving  questions  of  evidence  in  contested  elec- 
tion cases 502 

Returns  and  election  papers  may  be  impeached  upon  quo  war- 
ranto      503 

Parol  evidence  admissible  to  impeach 503 

Tally-sheets,  if  required  by  law  to  be  kept,  admissible  in  evi- 
dence          504-506 

Poll  books  prima  facie  evidence  only 507 

May  be  impeached  for  fraud 507 

Return  must  be  signed 508 

Held  admissible  for  some  purposes,  though  unsigned,  if  other- 
wise proved 509 

Effect  of  entire  disregard  of  the  law  by  election  officers     .     .    510, 511 

Evidence  of  appointment  of  inspectors  of  election 512 

Proof  of  true  vote  by  secondary  evidence 518 


XXll  OONTENTS. 

Correction  of  final  return  by  reference  to  primary  returns     .     .  §  513 

Absence  of  oath  will  not  vitiate  return 514 

Rule  as  to  setting  aside  returns 515 

Illustrations 515-517 

Distinction  between  rejecting  return  and  setting  aside  election  .  518 
State  statute  regulating  elections  not  binding  upon  Congress  .  519 
But  decisions  of  State  tribunals  under  such  statutes  prima  facte 

evidence 520 

Rules  as  to  proving  votes  when  return  has  been  rejected  .  .  .  521 
Failure  of  the  oflBcers  of  one  of  several  precincts  to  make  return      522 

Rule  as  to  rejection  of  entire  poll 523,  524 

Proof  that  oflBcers  of  election  were  not  sworn 525 

Proof  of  alteration  of  return 526 

Not  necessary  to  show  intentional  wrong  on  part  of  election  offi- 
cer in  rejecting  vote 527 

Rule  in  House  of  Representatives  as  to  counting  votes  of  legal 

voters  rejected  at  the  polls 527a 

Rule  in  Arkansas  and  other  States    ..........    257& 

CHAPTER  XV. 

IMPERFECT  BALLOTS. 

Incorrect  spelling  of  names  and  the  like •    •    .  §  528 

Imperfect  ballot  may  be  explained  by  parol  proof    .     •     •     •     .      529 

The  true  rule  upon  the  subject 530 

Ambiguous  ballot — Surrounding  circumstances  shown  to  explain 

voter's  intent 530, 581 

Illustrations 530 

The  rule  as  stated  by  Judge  Cooley 530 

Ballots  containing  a  greater  number  of  names  than  there  are 

oflSces  to  be  filled 532,533 

Ballots  written  or  printed  on  several  pieces  of  paper    ....      534 

Ballots  marked  in  violation  of  statute 535,  536 

Statutes  forbidding  distinguishing  marks,  when  mandatory  .     .      537 

Eflfect  of  statute  regulating  size  and  form  of  ballot 538 

What  is  a  "  distinguishing  mark  "  upon  a  ballot 539 

Construction  of  statute  of  North  Carolina 539a 

Construction  of  statute  of  Alabama 539b 

Construction  of  statute  requiring  indorsement  upon  ballot  of 

name  of  office  voted  for 540 

Ballot  may  be  bad  in  part  and  good  as  to  remainder     ....      541 

Repetition  of  name  of  candidate •     •     .      542 

Distinction  between  ambiguous  and  void  ballots 542 

Ballot  may  be  explained,  but  cannot  be  contradicted  ....  543 
Writing  prevails  over  print 543 


CONTENTS.  XXlll 

Rule  as  to  admissibility  of  evidence  aliunde  to  explain  ballot     .  §  544 

Courts  not  bound  by  rules  which  govern  canvassers      ....  545 

Illustrations 546 

The  term  "  written  "  includes  what  is  printed 547 

Constitutionality  of  statutes  requiring  ballots  to  be  numbered    .  548 
Substantial  compliance  with  statute  as  to  form  of  ballot  suffi- 
cient        549 

Missouri  decisions  upon  this  subject 549a 

CHAPTER  XYL 

VIOLENCE  AND  INTIMIDATION. 

Fairness,  purity  and  freedom  of  elections  must  not  be  interfered 

with §  650 

Slight  disturbances  will  not  vitiate  election 550, 551 

Bule  stated 651 

Interference  by  the  military 552 

Surrounding  polls  by  military  force 553 

Stationing  troops  in  the  vicinity  of  the  election 554 

Misconduct  of  soldiers  stationed  near  voting  place  ....     555-557 
Duty  of  House  of  Representatives  to  inquire  into  charges  of  in- 
timidation       558,559 

Violence  and  intimidation  affecting  a  part  only  of  the  district  in 

which  the  election  was  held 560,  561 

Burden  of  proof  where  intimidation  is  shown 560a 

General  rules  upon  the  subject  stated 562-564 

It  must  be  shown  that  the  violence  and  intimidation  affected  re- 
sult   565 

Evidence  of  intimidation •....      566 

Importance  of  preserving  freedom  of  elections 567 

Calling  out  militia  on  election  day •    .    .     .     .      568 

CHAPTER  XYII. 

IMPEACHMENT  OF  RETURNS  FOR  FRAUD  OR  ILLEGAL 

VOTING. 
Return,  if  free  from  fraud,  the  best  evidence;  but  may  be  im- 
peached       §  569,570 

Nature  of  impeaching  proof  required 571 

Effect  of  rejecting  return 571 

Fraudulent  return  must  fall  to  the  ground 571 

Dangers  attending  rejection  of  return 571 

Character  of  parol  proof  which  may  be  admitted      ....    572,  573 

Fraud  by  officers  and  by  other  persons 574 

Circumstantial  evidence  tending  to  show  fraud  ..••••      575 


XXIV  CONTENTS. 

Effect  of  proof  of  fraud  which  does  not  change  result  ....  §  575 

Check  list  as  evidence 577 

Not  necessary  to  show  that  officers  participated  in  fraud  .     .     .  578 

Evidence  aliunde  the  return 578 

What  acts  of  election  officers  will  constitute  fraud 579 

Presence  of  unauthorized  persons  at  the  place  of  canvassing  votes  580 
Return  not  rejected  on  account  of  illegal  votes  received  if  they 

did  not  change  the  majority 581 

Proof  that  vote  cast  was  largely  in  excess  of  number  of  legal 

voters 582 

Disregard  of  law  sufficient  to  shift  burden  of  proof 583a 

Other  circumstantial  evidence  of  fraud 583 

Fraudulent  naturalization  certificates 684 

CHAPTER  XYIII. 

PROSECUTIONS  FOR  VIOLATIONS  OF  ELECTION  LAWa 

Statutory  remedy  exclusive §  585 

Whether  the  crime  of  illegal  voting  can  be  punished  at  common 

law,  query 585, 586 

Decision  of  the  question  in  Massachusetts 585 

Ruling  in  Ohio 585 

Conflict  of  authority  as  to  necessity  for  showing  that  defendant 

had  knowledge  of  his  disqualification 587,  588 

Liability  of  person  voting  upon  void  certificate  of  naturaliza- 
tion  589,590 

Rule  where  qualification  of  voter  is  question  of  doubt  .  .  .  590-593 
What  constitutes  the  completed  act  of  illegal  voting    .     ,     .     593,  594 

Liability  of  minor  who  votes  believing  he  is  of  age 595 

No  conviction  unless  election  was  authorized  by  law  .  .  .  596,  597 
Construction  of  statute  punishing  the  offense  of  voting  "  without 

being  duly  qualified  " 598 

Character  of  question  decided  by  election  officer  to  be  consid- 
ered  599,600 

Liability  for  fraudulently  appointing  illiterate  inspector  of  elec- 
tion   599 

Distinction  between  discretionary  and  quasi-jndicial  powers  of 

election  officers 600 

Mere  irregularity  in  manner  of  conducting  election  no  defense  .      601 

Advice  of  friends  cannot  be  shown  in  defense 608 

Nor  can  a  favorable  decision  by  officers  of  election  upon  defend- 
ant's right  to  vote 602 

Requisites  of  an  indictment  for  illegal  voting 603 

Indictment  must  advise  defendant  definitely  as  to  nature  of 

charge  against  him 604, 605 


CONTENTS.  XXV 

Not  always  sufficient  to  follow  words  of  statute  ....      §  606,  607 

Illustrations 606-614 

Case  in  Tennessee 606 

In  general  disqualifications  must  be  specified 608,  613 

Not  necessary  to  aver  that  election  was  held  by  the  proper  officers      609 
Nor  what  particular  officers  were  to  be  chosen  at  the  election     .      610 
Officer  not  liable  to  mistake  of  judgment  under  statute  of  Penn- 
sylvania      611 

Indictment  for  voting  more  than  once  at  same  election    .     .     ,      612 

Must  state  where  illegal  vote  was  oast ,      614 

Presumption 615 

Advice  of  counsel 616 

Case  in  Massachusetts 617 

Burden  of  proof  to  show  non-residence  is  upon  the  Commonwealth  618 
Def  en  dant's  statement  at  time  of  voting  not  admissible  in  evidence      619 

CHAPTEK  XIX. 

LEGISLATIVE   BODIES  — THEIR    ORGANIZATION    AND   JUDI- 
CIAL  POWERS. 

Importance  of  established  rules  governing  organization     ...  §  620 
Members  holding  usual  credentials  entitled  to  participate  in  or- 
ganization        621 

Temporary  organization 622 

Statutory  regulations 623 

No  general  business  until  members  have  been. sworn    ....      624 
Power  of  Houses  of  Congress  over  election,  returns  and  qualifica- 
tions of  their  members 625 

Powers  and  duties  of  clerk  of  lower  House  of  Congress  .  .  .  626 
Division  of  legislative  body  which  ought  to  be  a  unit  ....  627 
Rule  for  determining  which  is  the  legal  organization  .  .  .  698,  629 
Distinction  between  supreme  and  subordinate  legislative  bodies      628 

Power  of  courts  over  the  latter 628 

Important  case  in  Pennsylvania 628 

Question  between  rival  bodies  each  claiming  to  be  Legislature    .      629 

Decision  of  United  States  Senate 629-631 

Power  of  legislative  body  to  preserve  order  and  decorum  .     .     .      622 

Duty  of  presiding  officer 633 

Power  of  Houses  of  Congress  over  their  members 634 

Expulsion 684,635 

Jurisdiction  to  inquire  into  acts  done  before  election    .     .     .     635, 636 

Power  to  punish  for  contempt 637 

Power  over  witness  summoned  before  them 637,  638 

Power  of  legislative  bodies  generally  over  witnesses     ....      638 

Refusal  of  witness  to  answer  questions 639 

Act  of  Congress  of  January  24,  1857 639 


XXVI  CONTENTS. 

Power  of  House  and  of  courts  under  said  act §  689, 640 

Power  of  legislative  body  to  punish  for  contempt  not  general,  but 

limited 640 

Decision  of  Supreme  Court  of  the  United  States  in  Kilbourne  v. 

Thompson 640 

CHAPTEE  XX. 

CORPORATE  ELECTIONa 

Corporations  governed  by  stockholders §  641 

Each  shareholder  entitled  to  one  vote  for  each  of  his  shares  of 

stock  unless  otherwise  provided 648 

Qualifications  for  voting  in  a  corporation 643 

Interest  of  stockholder  in  general  no  disqualification    ....      643 

Limitation  of  this  rule •      643 

Rights  of  stockholders 644 

Equitable  assignment  of  stock 645 

Right  to  vote  not  limited  to  natural  persons 645 

Qualification  of  rule  that  legal  holder  of  shares  may  vote  upon 

them 646 

Corporate  transfer  book  as  evidence  of  title 647,  648 

Rights  and  duties  of  persons  holding  stock  as  trustees  ....      649 

Contract  of  membership,  when  complete 650 

Mode  of  conducting  stockholders'  meetings    .......      651 

Notice 652 

How  given 653 

May  be  by  statute,  charter,  by-laws  or  standing  rules,  as  well  as 

by  publication 653, 654 

Mandamus  to  compel  calling  of  election 654, 655 

Election  must  be  held  at  reasonable  time  and  place      ....      656 

Adjournment 657 

Validity  of  corporate  meeting  held  beyond  borders  of  State  creat- 
ing the  corporation 658, 659 

Voting  by  proxy  unknown  at  common  law 660 

But  now  generally  recognized 660 

Conduct  of  corporate  election 661,  662 

Illegal  voting 663 

Cumulative  voting 664 

Cannot  be  forced  upon  corporations  after  their  organization  .    664, 667 

Election  of  directors 665 

Right  to  vote  for  less  than  whole  number 665, 666 

Votes  for  disqualified  or  ineligible  candidate 668 

Failure  to  elect  officers  at  proper  time 669 

Tenure  of  officers  of  corporation 670 

Holding  over 670 

Remedies  for  illegal  corporate  elections 671 


CONTEi?TS.  XXVll 

CHAPTER  XXI. 

STATUTORY  REGULATION  OF  ELECTIONS. 

Importance  of  the  subject §  673,  673 

Evils  of  crowding  the  polling  places *  674 

Multiplication  of  voting  precincts 675 

Complete  registration ■    .     .  676 

Non-partisan  election  boards 677 

Presence  of  witnesses  representing  all  parties 677 

Counting  of  votes  without  delay 678,  679 

Protection  of  voters  against  intimidation  and  violence      .     .     .  680 

Fraudulent  ballots 681 

Regulation  as  to  size  and  form  of  ballot 681 

Summary  of  necessary  provisions 682 

Existing  statutes 683-689 

Recent  act  of  Kansas  Legislature  to  prevent  crowding  at  polls  ,  684 
Provisions  against  counting   ballots  so  printed  as  to  mislead 

voters 690 

CHAPTER  XXII. 

THE  AUSTRALIAN  BALLOT  SYSTEM. 

Origin  of  the  system  and  introduction  in  other  countries  ...  §  691 

Introduction  in  the  United  States 692 

Provision  for  an  official  ballot 693 

Directions  governing  printing  of  ballots 694 

Size  and  style  of,  and  arrangement  of  names  upon  the  ballots     .  695 
Rule  where  one  candidate  is  named  for  same  office  by  two  or 

more  parties 696 

Manner  of  nominating  candidates  and  filing  certificates  of  nom- 
ination    697 

Duty  of  Secretary  of  State  when  certificates  of  nomination  are 

filed  by  rival  factions  of  a  party 698 

The  limitation  of  the  right  to  have  ballots  printed  at  public  ex- 
pense and  to  have  names  of  candidates  printed  thereon,  not 

unconstitutional 699 

Right  of  the  voter  to  vote  for  the  person  of  his  choice  ....  700 
Right  of  a  political  convention  to  delegate  authority  to  make 

nominations 701 

A  candidate  nominated  by  individual  electors  not  the  nominee 

of  a  political  party 702 

Nomination  papers;  how  signed 703 

Mass  conventions  not  prohibited  in  Minnesota 704 

Provisions  of  the  statute  concerning  certificates  of  nomination; 

mandatory  or  directory 705 


XXVm  CONTENTS. 

Other  provisions  liberally  construed §  706 

What  constitutes  filing  of  certificate  of  nomination      ....  707 
Petitioners  may  proceed  by  mandamus  to  compel  oflBcer  to  cer- 
tify the  name  of  a  candidate 708 

Efifect  of  wrongful  certificate  as  to  a  part  of  the  candidates  upon 

the  ballot 708 

Certificates  for  filling  vacancies 709 

Printing  and  distribution  of  sample  ballots 710 

Sample  ballots  voted  by  mistake;  effect  of 711 

Appointment  of  judges,  clerks,  challengers  and  watcheiis  .     ,     .  712 

Voting  compartments 713 

Act  of  voting;  how  accomplished 714 

Provision  requiring  voter  to  prepare  ballot  in  voting  compart- 
ment        715 

Provision  requiring  initials  of  two  judges  of  opposite  parties 

upon  the  ballot  not  mandatory 716 

The  requirement  that  the  ballot  must  bear  the  initials  of  a  judge 

of  election  held  unconstitutional  in  Nevada 717 

Assistance  to  disabled  voters 718 

Assistance,  how  rendered 719 

Provisions  defining  manner  of  marking  ballot  generally  held  to 

be  mandatory 720 

Use  of  distinguishing  marks 721 

Effect  of  marks  accidentally  made 722 

Effect  where  voter  writes  his  name  upon  the  ballot       ....  723 
General  principle  applicable  in  determining  whether  provisions 

are  mandatory  or  directory 724 

Primary  elections  in  Kentucky  held  under  Australian  system    .  725 
Separate  ballots  and  ballot-boxes  provided  for  women  in  some 

States 726 

General  provisions  for  the  prevention  of  fraud 727 

Use  of  voting  machines  authorized  in  Michigan  and  New  York  .  728 

Voting  machines;  how  constructed  and  operated 729 

Appendix Page  529 

Elective  Franchise "531 

Election  of  Senators "  540 

Election  of  Representatives "  541 

Organization  of  Meetings  of  Congress "  548 

Contested  Elections "  544 

Presidential  Elections "  550 

Residence  as  a  Qualification  for  Voting "  557 

Index "565 


TABLE  OF  CASES  CITED. 


References  are  to  sections. 


A. 

Abbott  V.  Frost  (2  Bart.  594),  203, 

216. 
Aokerman  v.  Haenck  (147  IlL  514), 

63,  223. 
Acorn,  The  (2  Abbott,  U.  S.,  434),  76. 
Adam  v.  Mengel  (8  Atl.  Rep.  606), 

71,  336. 
Adams  v.  Wilson  (CL  &  H.  373),  546. 
Adams  v.  Woodbridge  (4  IlL  255), 

219. 
Adsit  V.   Secretary    of   State    (84 

Mich.  420),  228. 
Ah  Yup,  In  re  (5  Sawy.  155;  s.  a, 

6  Cent  Law  J.  387),  71. 
Albert  v.  Twohig  (35  Neb.  583),  478. 
Alden  v.  Hinton  (6  N.  D.  217),  293. 
Allen  V.  Glynn  (17  Colo.  338;  29  Pac. 

Rep.  670),  225,  705,  706. 
Allen  V.  Hill  (16  Cal.  113),  649. 
Allison  V.  Blake  (57  N.  J.  6),  49.  59. 
Alvord  V.  Collin  (20  Pick.  428),  216, 

333. 
American  Ins.  Co.  v.  Canter  (1  Pet 

540),  13. 
American    Railway    Frog  Co.    v. 

Haven  (101  Mass.  398),  671. 
Anderson  v.  Baker  (23  Md.  531;  s.  C, 

Bright.  Elec.  Cas.  194),  3,  4, 5, 24, 

26,  46,  289. 
Anderson  v.  Colson  (1  Neb.  172),  402. 
Anderson  v.  Dunn  (6  Wheat  204), 

637,  640. 
Anderson  v.  Milliken  (9  Ohio  St 
■     568),  289. 


Anderson  v.  Santa  Anna  (116  U.  S. 

356),  658. 
Anderson  v.  Tyree  (Utah,  42  Pao. 

Rep.  201),  34,  63. 
Anderson  v.  Winfree  (85  Ky.  597), 

172. 
Andrews  v.  Heme  (1  Lev.,  EL  B., 

33),  218. 
Andrews  v.  Judge  of  Probate  (74 

Mich.  278),  71,  369,  474. 
Andrews  v.  Lancier  (13  La.  Ann. 

301),  240. 
Anonymous  (4  Leg.  Obs.  98),  82. 
Anthony  v.  Halderman  (7  Kan.  50), 

36. 
Appeal  of  Cusick  (136  Pa.  St  439, 

459),  127,  140,  141,  227. 
Appointment  of  Supervisors,  In  re 

(52  Fed.  Rep.  254),  126. 
Apple  V.  Bancroft  (158  IlL  649),  473, 

542. 
Applegate  v.  Egan  (74  Mo.  258),  589, 

549a. 
Archer  v.  Allen  (1  Bart  169),  477. 
Arnold,  Ex  parte  (128  Mo.  256),  489. 
Arnold  v.  Lea  (CL  &  H.  601),  229. 
Arris  v.  Stukely  (2  Mod.  260;  s.  C, 

1  Selw.  N.  T.  68),  367. 
Arrison  v.  Cook  (6  D.  C.  335),  416. 
Ashby  V.  White  et  aL  (2  Ld.  Raym. 

938;  1  Smith's  Lead.  Caa  472), 

9,  291. 
Ashfield's  Case  (Cush.  Elec.  Cas. 

583),  541. 
Aspinwall  v.  Ohio,  etc.  R.  R.  (20 

Ind.  492,  497),  65a 


XXX 


TABLE   OF   CASES   CITED. 


Beferences  are  to  sections. 


Atkinson  v.  Lay  (115  Mo.  538;  s.  C, 

22  S.  W.  Repi  481),  702,706,  708. 
Atkinson  v.  Loebur  (111  CaL  419), 

580. 
Atkinson  v.  Pendleton  (Row.  45), 

478,  600. 
Attorney-General   y.    Barstow   (4 

Wis.  749),  264 
Attorney-General  v.  Connors   (27 

Fla.  329),  335. 
Attorney-General    v.    Detroit    (78 

Mich.  545),  65. 
Attorney-General  v.  Ely  (4  Wis. 

420),  529,  532. 
Attorney-General   v.    Glaser   (103 

Mich.  396),  537. 
Attorney-General     v.     Howcraft 

(Mich.,  64  N.  W.  Rep.  654),  731. 
Attorney-General  v.  Mars  (99  Mich. 

538),  144 
Attorney-General  v.  Marston    (66 

N.  H.  485),  335. 
Attorney-General  v.  May  (99  Mich. 

538),  495. 
Attorney-General  v.  McQuade  (94 

Mich.  439),  48a 
Augustin  V.  Eggleston  (12  La.  Ann. 

366),  306,  565. 

B. 

Babbitt,  A.  W.,  Case  of  (1  Bart 

116),  244 
Bacon  v.  Benchley  (2  Cush.  100), 

297. 
Bacon  v.  York  County  (26  Me.  491), 

264 
Baird  v.  Bank  (11  a  &  R  411),  251. 
Baker's  Appeal  (109  Pa.  St  461), 

667. 
Baker  v.  Long  (17  Kan.  341),  445. 
Baker  and  Yell,  Case  of  (1  Bart 

92),  337,  34a 
Bildwin  V.  Trowbridge  (2  Bait  46X 

153,  156. 


Baltimore  v.  Fledderman  (67  Md. 

161),  369. 
Bard's  Case  (CL  &  H.  116),  513. 
Barker,  In  re  (6  Wend.  509),  645, 649, 

660. 
Barker  v.  People  (20  Johns.  457), 

iia 

Barker  v.  Pittsburg  (4  Barr,  Pa., 

49),  36a 
Barnes  v.  Adams  (2  Bart  760),  249, 

50a  510,  514 
Barnes  v.  Supervisors  (51  Miss.  305), 

136,  225. 
Barney  v.  McCreery  (CL  &  a  167), 

333. 
Barry  v,  Louck  (5  Coldw.  588),  181. 
Barton  v.  Himrod  (8  N.  Y.  483),  197. 
Bassett  v.  Bay  ley  (CL  &  H.  254),  375. 
Batesville  Inst   v.  Kaufifman  (18 

Wall.  151),  350. 
Bath  V.  Reed  (78  Me.  276),  349. 
Batman  v.  Megowan  (1  Met,  Ky., 

533),  379,  428. 
Batterman,  In  re  (14  Misa  213),  103. 
Batterton  v.  Fuller  (S.  D.,  60  N.  W. 

Rep.  1071),  429. 
Batturs  v.  Megary  (1  Brewst  162), 

429,  439,  53a 
Baxter  v.  Brooks  (29  Ark.  173),  380. 
Baxter  v.  Ellis  (111  N.  C.  124),  537. 
Beach,  Case  of  (1  Bart  391),  169. 
Beal  V.  Ray  (17  Ind.  554),  184 
Beall  V.  Albert  (159  IlL  126),  472. 
Beardstown  v.  Virginia  (81  IlL  541), 

96,  97,  479,  484 
Bechtel  v.  Albin  (134  Ind,  193;  &  C., 

87  Pac.  Rep.  16),  720. 
Beck  V.  Board  of  Election  Commis- 
sioners (103  Mich.  192),  211. 
Beck  V.  McGhee  (1  Zab.,  N.  J.,  317), 

158. 
Beckett  v.  Houston  (32  Ind.  393), 

64a 
Behrensmeyer  v.  Kreitz  (135  IlL 

591),  75,  76,  84,  88,  222,  530. 


TABLE   OF   OASES   OITED. 


ZXXl 


References  are  to  sectiosiB. 


Belknap  v.  Board  of  Canvassers  (94 

Mich.  516),  412. 
Bell  V.  Snyder  (Smith,  247X  482,  491, 

527a. 
Belles  V.  Burr  (76  Mich.  1),  63. 
Benford  v.  Gibson  (15  Ala.  521),  368. 
Bennett  v.  Chapman  (1  Bart.  204), 

93,  204. 
Berry  v.  Hull  (N.  M.,  30  Pac.  Rep. 

936),  71,  88,  429. 
Berry  v.  McCullough  (94  Ky.  247), 

176. 
Berry  v.  Wilcox  (44  Neb.  82),  88, 

102. 
Bevard  v.  Hoffman  (18  Ind.  474), 

289,  600. 
Bew  V.  State  (71  Miss.  1),  126. 
Biddlo  V.  Richards  (CL  &  H.  407), 

342. 
Biddle  v.  Wing  (CL  &  H.  504),  90, 

91,  167,  524,  558. 
Birmingham  v.  Locke  (1  Q.  B.  156), 

648. 
Bisbee  v.  Hull  (1  Ells.  315),  418. 
Bisbee  v.  Finley  (2  Ells.  172),  449, 

467,  474,  493,  523,  527a,  558. 
Blackwell  v.  Thompson  (2  Stew.  & 

Port.  348),  594. 
Blair  v.  Barrett  (1  Bart.  318),  248, 

249,  464,  571. 
Blair  v.  Ridgley  (41  Mo.  161,  175), 

4,  6,  19,  28,  52,  53. 
Blanchard  v.  Stearns  (5  Met.  298), 

289. 
Blankenship  v.  Israel  (132  111.  514), 

88,  227,  543. 
Blight  V.  Rochester  (9  Wheat  535), 

79a. 
Blitz  V.  United  States  (153  U.  S. 

308),  603. 
Blockley   Election    (2    Pars.    534), 

540. 
Bloomer  v.  Todd  (1  L.  R.  A.  Ill), 

46. 
Blue  V.  Peter  (40  Kan.  701),  571. 
C 


Board  of  Canvassers,  In  re  (13  N.  Y. 

Sup.  174),  268. 
Board  of  Education  v.  Welch  (51 

Kan.  792),  412. 
Board  of  Supervisors  v.  Judge  of 

Wayne  Co.  (Mich.,  64  N.   W. 

Rep.  42),  316. 
Bolano  v.  People  (25  Hun,  N.  Y., 

423),  259. 
Boles  V.  Edwards  (Smith,  18),  451. 
Bolton  V.  Good  (41  N.  J.  Law,  296), 

181. 
Bonner  v.  State  (7  Ga.  473),  402. 
Bonzano,  Case  of  (3  Bart.  1),  188. 
Bookner  v.  Gordon  (81  Ky.  665),  49. 
Borleau's  Case  (2  Pars.  503),  223. 
Botkin  V.  Maginnis  (Mob.  377),  228. 
Botts  V.  Jones  (1  Bart.  73),  461. 
Bourland  v.  Hildreth  (26  Cal.  161), 

156. 
Bowen  v.  Buchanan  (Row.  193),  565. 
Bowen  v.  Hixon  (45  Mo.  340),  267, 

427. 
Bowers  v.  Smith  (111  Mo.  45),  225, 

284,  700,  705. 
Bowling  v.  Turner  (78  Md.  595),  96. 
Boyd  V.  Mills  (53  Kan.  594),  236,  536, 

711. 
Boyd  V.  Thayer  (143  U.  S.  135),  79a, 

84,  85a. 
Boyden  v.  Shober  (2  Bart.  904),  174. 
Boyer  v.  Teague  (106  N.  C.  576),  493. 
Boynton  v.  Loring  (1  Ells.  346),  429, 

530. 
Bradley  v.  Slemans  (1   Ells.  296), 

448. 
Bradwell  v.  State  (17  Wall.  140),  35. 
Braidy  v.  Theritt  (17  Kan.  468),  254. 
Brewster  v.  Hartley  (37  Cal,  15), 

651. 
Bridgeport  v.  Railroad  Co.  (15  Conn. 

475),  208. 
Bright,  Case  of  (1  Bart.  629),  151. 
Brockaway  v.  Gadsden  Min.  Land 

Co.  (102  Ala.  620),  658. 


xxxn 


TiJBLE   OF   CASES   CITED. 


References  are  to  sections. 


Brookenbrough  ▼.  Cabell  (1  Bart. 

79;,  201. 
Bromberg  v.  Harralson  (Smith,  355), 

429,  550,  557. 
Brooks  V.  Davis  (1  Bart.  244),  449. 
Brower  v.  O'Brien  (2  Ind.  423),  263, 

418,  421. 
Brown  v.  Commonwealth  (Pa.,  3 

Grant's  Cases,  209),  660. 
Brown  v.  Commonwealth  (Bright. 

Elec.  Cas.  282),  175. 
Brown  v.  Humraell  (6  Pa.  St.  86),  4. 
Brown  v.  McCallum  (76  Iowa,  479), 

530,  54a 
Brown  v.  Phillips  (71  Wis.  239),  65. 
Brown  v.  Rush  County  Commis- 
sioners (38  Kan.  436),  264. 
Brown  v.  Union  Ins.  Co.  (3  La.  177, 

182),  655. 
Bruce  v.  Loan  (1  Bart.  482),  550, 

551. 
Buchanan  v.  Manning  (3  Ells.  287), 

527a, 
Buckner  v.  Lynip  (Nev.,  41  Pac.  Rep. 

762),  721. 
Bull  V.  Southwick  (2  New  Mex.  831), 

264 
Bunn  V.  Riker  (4  Johns.  428),  319. 
Bunting  v.   Willis  (27  Grat.  144), 

348,  352. 
Burch  V.  Van  Horn  (3  Bart.  305),  1, 

55,  457. 
Burke  v.  Monroe  County  (4  W.  Va, 

371),  399. 
Burkett  v.  McCarty  (10  Bush,  Ky., 

758),  123,  124 
Burleigh  v.  Armstrong  (Smith,  89), 

89,  92. 
Burnham  v.  Morrisey  (14  Gray,  226), 

637. 
Burt  V.  Winona  (31  Minn.  472),  255. 
Busey  v.  Hooper  (35  Md.  27),  671. 
Butler  V.  Lehman  (1  Bart  353),  471. 
Butterworth's  Case  (1  Woodb.  &  M. 

323^.  73. 


Byington  v.  Vandever  (1  Bart.  895), 

337,  348. 
Byler  v.  Asher  (47  111.  101),  141. 
Bynum  v.  Commissioners  (101 N.  C. 

413),  389. 
Byrne  v.  State  (12  Wis.  519),  592. 

a 

Caignet  v.  Pettit  (2  Dall.  234),  21. 
Calder  v.  Bull  (3  DalL  394),  29. 
Calvert  v.  Whitmore  (45  Kan.  99X 

531. 
Camden  Ry.  v.  Elkins  (37  N.  J.  Eq. 

373),  671. 
Camp  V.  Byrne  (41  Mo.  525),  659. 
Campbell  v.  Gordon  (6  Cranch,  176), 

84 
Campbell  v.  Morey  (Mob.  215),  101, 

495. 
Campbell  v.  Weaver  (Mob.  455),  140, 

141. 
Cancellation  from   Registry  List, 

In  re  (141  N.  Y.  112),  63a,  65. 
Cannon  v.  Campbell  (2  Ells.  604), 

823,  328,  625. 
Capen  v.  Foster  (12  Pick.  485),  127, 

130,  289. 
Carleton  v.  Whitcher  (5  N.  H.  196), 

333. 
Carlisle  v.  United  States  (16  Wall. 

147),  125. 
Carlton  v.  People  (10  Mich.  350), 

355. 
Carpenter's  Case  (3  Pars.  540),  328, 

437. 
Carr  v.  State  (111  Ind.  101),  355. 
Carrothers  v.  Russell  (53  Iowa,  346), 

216,  333. 
Carson's  Case  (3  Lloyd's  Debates, 

23),  375. 
Carson  v.  McPhetridge  (15  Ind.  327), 

339. 
Carter  v.  Harrison  (5  Blackf.  138), 

289. 


TABLE   OF   CASES   CITED. 


XXXUl 


References  are  to  sections 


Carter  v.  Putnam  (141  111.  133),  99. 
Carter  Gas  Engine  Co.  v.  Carter 

(47  111.  App.  86),  653. 
Casement,  Case  of  (3   Bart.  516), 

345. 
Castello  V.  St.  Louis  Circuit  Court 

(38  Mo.  859),  437. 
Catlin  r.  Smith  (3  S.  &  R.  367),  107. 
Caulfield  v.  Bullock  (18  B.  Mon.  494), 

389. 
Cawley  v.  People  (95  111.  349),  345. 
Cecil,  In  re  (36  How.  Prac.  477),  660. 
Cessna  v.  Myers  (Smith,  60),  101, 

485. 
Chadwick  v.  Melvin  (Bright.  Elec. 

Cas.  351),  158,  163,  584. 
Chalmers  v.  Manning  (Mob.  7),  303. 
Chamberlain  v.  Woodin  (3  Idaho, 

609),  569. 
Chandler,  Case  of  (1  Bart  530),  169. 
Chandler  v.  Bradish  (83  Vt  416), 

670. 
Chandler  v.  Main  (16  Wis.  398),  156. 
Chapman  v.  Ferguson  (1  Bart.  867), 

513,  531. 
Chase  v.  Miller  (41  Pa.  St.  404),  98, 

156. 
Chavis  V.  Clever  (8  Bart.  467),  303. 
Chester  R.  R.  Co.  v.  Caldwell  Co. 

(78  N.  a  486),  810. 
Chirac  v,  Chirac  (3  Wheat  859),  70. 
Chisholm,  Ex'r,  v.  State  of  Georgia 

(3  Ball.  463),  15. 
Chrisman  v.  Anderson  (1  Bart  388), 

867,  508. 
Churchwarden's  Case  (Garth.,  Eng., 

118),  405. 
Cincinnati,  etc.  R.  R.  v.  Commis- 
sioners (1  Ohio  St.  84),  197. 
City  of  Owensboro  v.  Hickman  (90 

Ky.  639),  139. 
Clanton  v.  Ryan  (14  Colo.  419),  483. 
Claridge  v.  Evelyn  (5  B.  &  A.  8), 

337. 
Clark's  Case  (Smith,  6),  305. 


Clark,  Ex  parte  (100  U.  S.  399),  48, 

144,  191. 
Clark  V.  Buchanan  (2  Minn.  346), 

868. 
Clark  V.  Hall  (1  Bart  215),  304,  848. 
Clark  V.  Hampden  Co.   Ex'r  (136 

Mass.  383),  400. 
Clark  V.  McKenzie  (7  Bush,  Ky., 

533),  370,  399. 
Clark  V.  Robinson  (88  HL  498),  115, 

141. 
Clayton  v.  Breckenridge  (Row.  679), 

457a. 
Clements'  Case  (1  Bart.  366),  170, 

305. 
Cleland  v.  Porter  (71  111.  76),  163. 
Clinton  Co.  Election  (3  Pa,  Law  J. 

160),  536. 
Cloud  V.  Wing,  Case  of  (1  Bart  455), 

169. 
Cochran  v.  Jones  (14  Am.  Law  Reg., 

N.  S.,  333),  344. 
Coflfey  V.  Edmunds  (58  CaL  531), 

539. 
Coffin  V.  State  (7  Ind.  157),  368. 
Coflfroth  V.  Kountz  (8  Bart.  35,  138, 

358),  304,  318,  314. 
Cogland  v.  Beard  (65  Cal.  58),  478. 
Golden  v.  Sharpe  (CI.  &  H.  369), 

386. 
Coleman,  In  re  (15  Blatch.  486),  79. 
Coleman  v.  Gernet  (14  Pa,  Co.  Ct 

Rep.  578),  730. 
Coleman  v.  Sands  (87  Va.  689),  353. 
Collins'  Case  (Bright  Elec.  Cas.  513), 

454. 
Collins,  In  re  (64  How.  Pr.,  N.  Y., 

68),  98. 
Collins  V.  Tracy  (36  Tex.  546),  355. 
Colt  V.  Eves  (13  Conn.  848),  883. 
Commissioners  v.  Harper  (38  111. 

108),  664. 
Commonwealth  v.  Aglar  (Bright. 

Elec.  Cas.    695;    s.  C,  Thach. 

Cr.  Cas.  418),  587. 


xxxiv 


TABLE   OF   OASES  CITSD. 


References  are  to  sections. 


Commonwealth    v.    Ayer    (Cush. 

Elec.  Cas.  674),  607. 
CJommonwealth  v.  Baxter  (35  Pa. 

St  213,  268),  317. 
CJommonwealth  v.  Binghurst  (103 

Pa.  St.  134),  660. 
Commonwealth  v.  Bradford  (9  Met 

268),  616,  617,  618. 
Commonwealth    v.    Chapman    (1 

DalL  53),  21. 
Commonwealth  v.  Clary  (8  Mass. 

72),  89,  17a 
Commonwealth  v.  Cluley  (56  Pa. 

St  270),  329,  33L 
Commonwealth  v.  Commissioners 

(5  Rawle,  75),  158,  816,  397,  406, 

409,  503. 
Commonwealth  v.  Commissioners 

(6  Whart  476),  402. 
Commonwealth    v.  Connelly  (163 

Mass.  539;  s.  a,  40  N.  K  Rep. 

862),  703. 
Commonwealth  v.  Cullen  (13  Pa- 
st 133),  652. 
Commonwealth    v.    Ely    (Bright 

Elecj.  Gas.  258),  532. 
Commonwealth  v.  Emminger  (74 

Pa.  St  479),  262. 
Commonwealth  v.  Gail  (10  Bush, 

Ky.,  488),  593,  594,  62a 
Commonwealth  v.   Grarrigues  (28 

Pa.  St  9),  380,  386,  387. 
Conmionwealth  v.  Gray  (2  Duv. 

373),  607. 
Commonwealth  v.  Hanley  (9  Pa. 

St  513),  349. 
Commonwealth  ▼.  Jones  (14  Am, 

Law  Reg.,  N.  S.,  374),  344 
Commonwealth  v.  Jones  (12  Pa.  St 

365),  334. 
Commonwealth  v.  Leary  (1  Brewst 

270),  77. 
Commonwealth  v.  Lee  (1  Brewst 

273;  &  a.  Gush.  Elec.  Cas.  98), 

77,  61 L 


Commonwealth  v.  Leech  (44  Pa  St 

332),  380,  392. 
Commonwealth  v.  Maddox  (Ky,,  32 

S.  W.  Rep.  129),  60a 
Commonwealth  v.  Maxwell  (27  Pa. 

St  44),  58. 
Commonwealth  v.  Miller  (Bright. 

Elec  Cas.  711;  s.  c,  2  Pars.  480), 

607. 
Commonwealth  v.  McClelland  (83 

Ky.  686),  128,  129. 
Commonwealth      v.      MeCloskey 

(Bright  Elec.  Cas.  196;  &  a,  S 

Rawle,  369),  375. 
Commonwealth  v.  McHale  (97  Pa. 

St  397),  585. 
Commonwealth  v.  Read    (2  Ash. 

261),  167, 16a 
Commonwealth  v.  Reeder  (Pa.,  33 

K  R.  A- 141),  212. 
Commonwealth  v.  Shaver  (Bright 

Elec  Cas.  134;  s,  G,  3  W.  &  S. 

338),  332. 
Commonwealth  v.  Shaw  (7  Mete 

52),  614. 
Commonwealth  v.  Sheriff  (1  Brewst 

183),  77,  289. 
Commonwealth  v.  Silsbee  (9  Mass. 

417),  586. 
Commonwealth  v.  Smith  (132  Mass. 

289),  17a 
Commonwealth  v.  "Wallace  (Thach- 

er's  Cr.  Gas.  592),  587. 
Commonwealth  v.  Woelper  (28  S. 

&  R  29),  536,  537. 
Conant  Widow,  v.  Milandon  (5  La. 

Ann.  542),  649. 
Congregational  Society  of  Bethany 

V.  Sperry  (10  Conn,  200),  655. 
Conlin  v.  Aldrich  (98  Mass.  557), 

402. 
Contested  Election,  In  re  (6  Phila. 

437),  540. 
Contested  Election  of  McDonough, 
In  re  (105  Pa.  St  488),  127,  141. 


TABLE   OF   CASES   CITED. 


ZZXY 


References  are  to  sections. 


Contested  Election  of  School  Di- 
rectors (165  Pa.  St.  233;  30  AtL 

Rep.  955),  720. 
Cook  V.  Cutts  (2  Ells.  243),  493. 
Cook  V.  Mock  (40  Kan.  472),  182. 
Cook  V.  State  (90Tenn.  407),  58, 126. 
Cope  V.  State  (126  Ind.  51),  329. 
Copp  V.  Lamp  (12  Me.  312),  653. 
Corbitt  V.  McDaniel  (77  Ga.  544), 

383. 
Cordiell  v.  Frizell  (1  Nev.  130),  349. 
Corliss,  In  re  (11  R.  I.  638),  329. 
Costello  V.  St  Louis  Circuit  Court 

(28  Mo.  259),  427. 
Council  V.  Rush  (82  Mich.  532),  126, 

699. 
County  V.  Johnson  (95  U.  S.  369), 

208. 
Covode  V.  Foster  (2  Bart.  600),  104, 

113,  523,  527a,  575,  580. 
Cowan  V.  Prowse  (93  Ky.  156),  71. 
Cowley  V.  People  (95  IIL  294),  345, 

121, 127,  215. 
Coy,  In  re  (127  U.  S.  731;  S.  C,  31 

Fed.  Rep.  794),  143,  257. 
Crabb  v.  Orth  (133  Ind.  11),  483. 
Craig  V.  First  Presb.  Church  (88 

Pa.  St.  42),  660. 
Craig  V.  Shelley  (Mob.  373),  503. 
Crane  v.  Reeder  (25  Mich.  303),  85a. 
Crawford  v.  Molitor  (23  Mich.  341), 

455. 
Crease  v.  Babcock  (10  Met.   525), 

649. 
Cregg,  Ex  parte  (2  Curt.  98),  73. 
Crosbie  v.  Hurley  (1  Ale.  &  Nap. 

431),  367. 
Crowell  V.  Lambert  (10  Minn.  369), 

317. 
Cuddeback,  Matter   of  (39  N.  Y. 

Sup.  388;  3  App.  Div.  103),  705. 
Cummings  v.  Missouri  (4  Wall  277), 

7,  53,  54,  55,  344 
Curry  v.  Woodward  (53  Ala.  371), 

655. 


Currow  v.  Clayton  (86  Me.  43;  29 

Atl.  Rep.  930),  720. 
Curtin  v.  Yocum  (1  Ells.  416),  140, 

22a 

D. 

Da  Costa  v.  Jones  (Cowp.  729),  318. 
Daggett  V.   Hudson  (43  Ohio  St 

548;  s.  C,  1  West  Rep.  789),  132. 
Dailey  v.  Estabrook  (1  Bart.  299), 

93,  253. 
Dailey  v.  Petroff  (10  Phila.  389), 

523. 
Dale  V.  Irwin  (78  HL  170),  101,  102, 

104, 141, 159,  436. 
Dalton  V.  State  (1  West  Rep.  773), 

261. 
Darrell  v.  Bailey  (3  Bart  754),  561. 
Davidson  v.  Grange  (4  Grant's  Ch., 

Up.  Can.,  377),  671. 
Davies  v.  McKeely  (5  Nev.  304),  430. 
Da  vies  v.  McKerky  (5  Nev.  368),  56. 
Davis,  G.,  Report  of  (1  Bart  55), 

191. 
Davis  V.  State  (75  Tex.  420),  47a 
Davy  V.  Savadge   (Hobart,  Eng., 

87;  s.  c,  12  Mod.  687),  375. 
Day  V.  Jones  (31  Cal.  261),  90,  156. 
Day  V.  Kent  (1  Greg.  123),  228. 
Dean  v.  Field  (1  Ells.  190),  308,  435. 
Delano  v.  Morgan  (2  Bart  168),  247, 

248. 
Dells  V.  Kennedy  (49  Wis.  555),  13a 
Demming,  In  re  (10  Johns.  233),  125. 
Dennett,  Petitioner  (32  Me.  508), 

38a 
Dennis  v.  Caughlin  (Nev.,  41  Pac. 

Rep.  768),  535,  722. 
Dennis  v.  State  (17  Fla.  389),  97. 
Deputy  Marshals,  In  re  (22  Fed. 

Rep.  153),  256. 
Desbois'  Case  (2  Mart  185),  85a 
Dew    V.    Sweet    Springs    District 

Court  (3  Hen.  &  Mun.  1),  270. 


xxxvi 


TABLE   OF   CASES    CITED. 


Beferences  are  to  sections. 


De  Walt  V.  Bartley  (146  Pa.  St  529), 

129,  545,  699. 
Dial  V.  Hollandsworth  (39  W.  Va.  1), 

222,  242. 
Dickey  v.  Hulburt  (5  CaL  343),  161, 

176. 
Dickey  v.  Reed  (78  III  261),  386, 387, 

436. 
Dishon  v.  Smith  (10  Iowa,  212),  178, 

216,  264. 
District  Attorney,  Case  of  (7  Am. 

Law  Reg.  786),  364. 
District  Attorney,  In  re  (11  Phila. 

645),  110. 
Dixon  V.  Orr  (49  Ark.  288),  479. 
Dobyns  v.  Weadon  (50  Ind.  298), 

575. 
Dodge  V.  Brooks  (2  Bart  78),  517. 
Doerflinger  v.  Hilmantel  (21  Wis. 

566),  429. 
Dores  v.  Varnon  (94  Ky.  507),  225. 
Dorey  v.  Lynn  (31  Kan.  758),  478. 
Double  V.  McQueen  (96  Mich.  39), 

417. 
Douglass  V.  Board  of  County  Com- 
missioners (23  Fla,  419),  216. 
Douglass,  Stephen  A.,  Report  of 

(1  Bart  47),  191. 
Dow  V.  Bullock  (13  Gray,  136),  670. 
Downing  v.  Potts  (8  Zab.  66),  648, 

668. 
Draper  v.  Johnson  (CL  &  H.  702), 

110,  112,  114.  166,  173,  247. 
Drinkwater  v.  Deakin  (L.  R  9  C. 

P.  626),  668. 
Druliner  v.  State  (29  Ind.  308),  539. 
Dryden  v.  Swinburne  (20  W.  Va, 

89),  327. 
Dudley  v.  Kentucky  High  School 

(9  Bush,  Ky.,  578),  641. 
DuflSeld's  Case  (Bright  Elec.  Cas. 

646),  426. 
Duffy,  In  re  (4  Brewst  531),  241, 

497. 
Duffy  V.  Mason  (1  Ells.  361),  429. 


Duke  V.  Asbee  (11  Ired.  112),  220. 
Duke  V.  Brown  (96  N.  C.  127),  210. 
Duncan,  In  re  (139  U.  S.  461),  34. 
Duncan  v.  Schenk  (109  Ind.  26),  47. 
Durkee  v.  People  (155  UL  354),  644. 


E. 


Eaking  v.  Raub  (12   Serg.  &  R. 

485),  4 
Earle,  Elias,  Case  of  (CL  &  H.  314), 

339. 
Easton  v.  Scott  (CL  &  H.  272),  247. 
Eaton  V.  Brown  (96  CaL  371 ;  31  Pac. 

Rep.  25),  700. 
Echols  V.  State  (56  Ala.  131),  501, 

504. 
Edwards,  Case  of  (CL  &  IL  92),  362. 
Edwards  v.  Knight  (8  Ohio,  375), 

434. 
Edwards  v.  United  States  (103  U.  S. 

471,  474),  352. 
Egan  V.  Jones  (21  Nev.  433),  437. 
Eggleston  v.  Strader  (2  Bart  897); 

250. 
Egly,  In  re  (158  Pa.  St  65),  158. 
Elbin  V.  Wilson  (33  Md.  135),  301. 
Election  Law,  In  re  (9  Phila.  497), 

90,  104 
Election  of  Cape  May  Nav.  Ca,  In 

re  (51  N.  J.  L.  78),  649. 
Election  of  Directors  of  Hudson  & 

Mohawk  R  R  Co.,  In  re  (19 

Wend.  135),  661. 
Election  of  McDonough  (105  Pa.  St 

488),  127,  141. 
Electors  v.  Bailey  (CL  &  H.  411), 

324  325. 
Elk  V.  Wilkins  (112  U.  S.  94),  81. 
Elkins  V.  Camden  &  Atlantic  Ry. 

Co.  (36  N.  J.  Eq.  467),  670,  671. 
Ellis  Y.  County  Commissioners  (2 

Gray.  370),  407. 
Ellis  V.  Glaser  (102  Mich.  405),  720. 
Ellis  V.  May  (99  Mich.  538),  718, 719. 


TABLE    OF   CASES   CITED. 


xxxvu 


References  are  to  sections. 


Ellyson,  Ex  parte  (20  Grat.  10),  381. 
English  V.  Peelle  (Mob.  167),  489, 

538. 
Enos  V.  State  (131  Ind.  560),  399. 
Ens  worth  v.  Albin  (44  Mo.  347),  135. 
Etherington  v.  Wilson   (L.  R   20 

Eq.  606),  668. 
Everett  v.  Smith  (22  Minn.  53),  208, 

462. 
Ewing  V.  Filly  (43  Pa,  St.  384),  308, 

380,  392. 
Ewing  V.  Thompson  (43  Pa.  St.  372), 

307. 

F. 

Farlee  v.  Runk  (1  Bart.  87),  101. 
Farrow  &  Bigby,  In  re  (3  Fed.  Rep. 

112;  s.  C,  4  Woods,  491),  364 
Fenton  v.  Scott  (17  Oreg.  189),  472, 

532. 
Ferguson  v.  Allen  (7  Utah,  263),  570. 
Ferguson  v.  Henry  (Iowa,  64  N.  W. 

Rep.  292),  472. 
Fernbacher  v.  Roosevelt  (90  Hun, 

441;  35  N.  Y.  Sup.  898),  702. 
Fields  V    Osborne  (60  Conn.  544), 

535,  539. 
Findley  v.  Bisbee  (1  Ells.  74),  466a, 

495,  496. 
Finley  v.  Walls  (Smith,  367),  511. 
First  Nat.  Bank  v.  Asheville  Fur- 
niture &  Lumber  Co.  (116  N.  C. 

827),  656. 
First  Parish  v.  Stearns  (21  Pick. 

148),  167,  581. 
Fishback  v.  Bramel  (Wyo.,  44  Pac. 

Rep.  840),  473. 
Fisher  v.  Dudley  (74  Md.  242;  22 

Atl.  Rep.  2),  676. 
Flanders  v.  Hahn  (1  Bart.  438,  446), 

170,  188,  248. 
Fletcher  v.  Jetter  (32  La.  Ann.  401), 

526. 
Foley  V.  Tyler  (161  111.  167),  380. 


FoUett  V.  Delano  (2  Bart  113),  430, 

446,  448.  505. 
Force  v.  Batavia  (61  111.  99),  181. 
Forsyth,  Case  of  (CI.  &  H.  497),  325. 
Foster  v.  Covode  (2  Bart.  519),  312. 
Foster  v.  Scarff  (15  Ohio  St.  532), 

158,  177. 
Fouke  v.  Trumbull  (1  Bart.  167,  619), 

326. 
Fowler  v.  State  (68  Tex.  30),  222, 

227,  243. 
Fox  v.  AUensville,  etc.  Turnpike 

(46  Ind.  31),  661. 
Fox,  Town  of,  v.  Kendall,  Town  of 

(97  III.  72),  128. 
Frederick  v.  Wilson  (Mob.  401,  406), 

498,  506,  545. 
Freeman  v.  Lazarus  (61  Ark.  247), 

542. 
Freeman  v.  Machias  Water  Power 

(38  Me.  343),  658. 
French  v.  Lightly  (9  Ind.  478),  106. 
Friend  v.  Hamill  (34  Md,  298),  600. 
Frost  V.  Metcalf  '1  Ells.  289),  527a. 
Fry  V.  Booth  (19  Ohio  St.  25),  163. 
Fuller  V.  Dawson  (2  Bart.  126),  514. 
Fuller  y    Kingsbury  (1  Bart  251), 

246. 

G. 

Gandy  v.  State  (82  Ala.  61),  603. 
Gandy  v.  State  (10  Neb.  243),  120, 

121. 
Gano  V.  State  (10  Ohio  St  237),  438. 
Garard  v.  Gallagher  (11  Neb.  382), 

458. 
Gardner  v.  Ward  (2  Mass.  244),  21. 
Garland,  Ex  parte   (4  Wall.  333), 

125. 
Garrison  v.  Mays  (Mob.   55),  123, 

459. 
Garvey,  In  re  (147  N.  Y.  IIT;,  103. 
Gates  V.  Delaware  Co.  (12  Iowa, 

405),  352. 


XXXVUl 


TABLE   OF   OASES   CITED. 


Beferences  are  to  sections. 


Gauze  v.  Hodges  (Contested  Elea 

Cases  in  Cong.  1871  to  1876, 

p.  89),  276. 
Geebrick  v.  State  (5  Iowa,  491),  197. 
Gee  Hop,  In  re  (71  Fed.  Rep.  374), 

71. 
Geissler,  Ex  parte  (9  Biss.  C.  C.  492), 

257. 
Gibbons  v.  Sheppard  (2  Brewst  65; 

s.  a,  65  Pa.  St  36),  429,  440, 442. 
Gibbons  v.  Stewart  (2  Brewst.  1), 

523. 
Giddings  v.  Clark  (Smith,  91),  266, 

452,  498,  511,  553. 
Gilbert  v.  Abijah  (41st  Cong.),  152. 
Gilkey  v.  McKinley  (75  Wis.  543), 

22a 
Gilleland  v.  Schuyler  (9  Kan.  569), 

227,  484. 
Gillen  v.  Armstrong  (12  Phila.  626), 

110. 
Gillespie  v.  Dion  (Mont,  44  Pac. 

Rep.  954),  434 
Gillespie  v.  Palmer  (20  Wis.  544), 

289. 
Gilroy,  In  re  (88  Me.  199),  74. 
Glandhill,  Petitioner  (8  Met  168), 

72. 
Glasscock  v.  Lyons  (20  Ind.  1),  367. 
Gleason  v.  Blanc  (14  Misc.  Rep.  620), 

898. 
Goetchens  v.  Matthewson  (58  Barb. 

152;  a  a,  48  How.  Prac.  97), 

124. 
Goetchens  v.  Matthewson  (5  Lans. 

214),  299. 
Goggin  V.  Gilmer  (1  Bart  70),  274. 
Goodell  V.  Baker  (8  Cow.  286),  160. 
Gooding  v.  Brown  (22  Fla.  437),  126. 
Gooding  v.  Wilson  (Smith,  79),  267, 

471,  499,  573. 
Goodman  v.  Bainton  (84  Hun,  53), 

101. 
Gordon  v.  State  (52  Ala.  208),  595, 

602,  608,  616. 


Gorham  v.  Campbell  (2  CaL  135), 

22& 
Goulding  v.  Clark  (34  N.  H  148), 

654. 
Govan  v,  Jackson  (32  Ark.   553), 

432,  5276. 
Grafflin,  Case  of  (1  Bart  464),  169. 
Graham  v.  Boston,  etc.  R.  R.  Co., 

(14  Fed.  Rep.   753;   s.  a,  118 

U.  S.  161),  658. 
Greenleaf  v.  Lowe  (4  Denio,  168), 

251. 
Gregory  v.  King  (3  Chic  Leg.  N. 

349),  219. 
Grelle  v.   Pinney  (62  Conn.   478), 

222. 
Grenada  Co.  v.  Brogden  (112  U.  S. 

261),  658. 
Grier  v.  Shacklef  ord  (2  Brev.,  2d  ed., 

549),  416. 
Grimble  v.  Green  (134  Ind.  628), 

424. 
Groesch  v.  State  (42  Ind.  547),  198. 
Guild  V.  Chicago  (82  III  472),  128. 
Gulick  V.  New  (14  Ind.  93),  329. 
Gumm  V.  Hubbard  (97  Mo.  312),  71, 

431,  467,  531. 
Gunter  v.   Wilshire  (Smith,  233), 

448,  531. 
Guyou  V.  Sage  (CI.  &  H  348),  238. 

H. 

Hacker  v.  Conrad  (181  Ind.  444), 

581. 
Hadley  v.  Albany  (33  N.  Y.  603),  267, 

316. 
Hadley  v.  Guthridge  (58  Ind.  302), 

431. 
Hadoux  V.  Clark  County  (79  Va. 

677),  181. 
Hagerty  v.  Arnold  (13  Kan.  367), 

269. 
Hale  V.  Evans  (12  Elan.  582),  357. 
HaU  V.  Gavett  (18  Ind.  390),  216, 333. 


TABLE  OF  OASES  CITED. 


^xx\^x 


References  are  to  sections. 


Hall  V.  Schoenecke  (128  Mo.  661; 

81  S.  W.  Rep.  6),  101, 715. 
Hammond  v.  Haines  (25  Md.  541), 

198. 
Hammond  v.  Herrick  (CI.  &  H.  387), 

339. 
Hannah  v.  Shepherd  (Tex.,  25  a  W. 

Rep.  137),  222. 
Hannon  v.  Grizzard  (96  N.  C.  293), 

299,  306a. 
Hanscom  v.  State  (Tex.,  81  a  W. 

Rep.  547),  535,  721. 
Harbaugh  v.  Cicott  (33  Mich.  341), 

97,  379,  334. 
Hardenburg  v.  Farmers',  etc.  Bank 

(3  Green,  68),  32a 
Harlan,  Case  of  (1  Bart  621),  150. 
Harris  v.  Granville  (4  Gray,  433), 

466. 
Harris  v.  Whitoomb  (4  Gray,  433), 

290. 
Harrison  v.  Davis  (1  Bart.  341),  550, 

551. 
Harrison  v  Lewis  (6  W.  Va.  713), 

443. 
Hartman  v.  Young  (17  Oreg.  150), 

471,  472. 
Hartt  V.  Harvey  (33  Barb.  55),  367, 

379,  331,  317,  537&. 
BEarwood  v.   Marshall  (9  Md.  83), 

403. 
Hawes  v.  Miller  (56  Iowa,  395),  316, 

531. 
Hawkins    v.   Carroll    County    (50 

Miss.  735),  137,  310,  316,  463. 
Hays  V.  Commonwealth  (82  Pa.  St 

518),  213,  664,  665. 
Heath,  Ex  parte  (3  Hill,  47X  363, 

282,  380,  405,  408,  52a 
Heath  v.  Mining  Co.  (39  Wis.  146), 

659. 
Hendel  v.  Hayden  (43  Neb.  760), 

480. 
Henderson  v.  Albright  (Tex.  Civ. 

App.,  34  a  W.  Rep.  993),  473. 


Henshaw  v.  Foster  (9  Pick.  813), 

289,  290.  547. 
Heyfron  v.  Mahoney  (9  Mont.  497), 

441,  495. 
Higbee  v.  Ellison  (92  Mo.  13),  437. 
Higgs  V.  Charlevoix  County  Super- 
visors (62  Mich.  456),  417. 
Hill  V.  Rich  Hill  M.  Co.  (119  Ma  9), 

652. 
Hilles  V.  Parish  (14  N.  J.  Eq.  380), 

658. 
Hodge  V.  Linn  (100  111.  397),  227. 
Hogan  V.  Kurtz  (94  U.  S.  773),  79a. 
Hogan  V.  Pile  (2  Bart.  281),  281, 

28a 
Hoge  V.  Reed  (3  Bart  540),  310. 
Hoge,  John,  Case  of  (CL  &  H.  185), 

186. 
Holmes,  Ex  parte  (5  Cow.  426X  649. 
Holmes  v.  Wilson  (1  Ells.  323),  143. 
Hoppin  V.  Buffin  (9  R.  L  513),  645, 

649. 
Houston  V.  Steele  (Ky.,  34  a  W. 

Rep.  6),  222,  411,  537,  720. 
Howard  v.  Cooper  (1  Bart  275),  247, 

569,  571. 
Howard  v.  Shields  (16  Ohio  St  184), 

503. 
Howard  College  v.  Gove  (5  Pick. 

370),  67. 
Howe  V.  Freeman  (14  Gray,  566; 

S.  C,  7  Allen,  155),  658. 
Howe  V.  Perry  (93  Ky.  360),  331a. 
Hubbard  v.  Williamstown  (61  Wia 

397),  181. 
Huber  v.  Reily  (53  Pa.  St  113),  46, 

133. 
Hudson  V.  Solomon  (19  Kan.  177), 

471,  476,  478. 
Hughes,  In  re  (3  Lack.  Jur.  813), 

107. 
Hughes  V.  Holman  (23  Oreg.  481), 

391,  471. 
Hulseman  v.  Rems  (41  Pa.  St  396), 

317,  387. 


xl 


TABLE   OF   CASES   CITED. 


References  are  to  sections. 


Humphrey  V.  Kingman  (5  Met  163), 

109,  110,  289,  466. 
Hundley  v.  Commissioners  (67  HL 

559),  128. 
Hunt  V.  Chilcott  (2  Bart  164),  320. 
Hunt  V.  Menard  (2  Bart  477),  190. 
Hunt  V,  Richards  (4  Kan.  549),  90. 
Hunt  V.  Sheldon  (2  Bart  530,  703), 

561,  563. 
Hunter  v.  Chandler  (45  Mo.  453), 

308,  316,  367. 
Hurd  V.  Romeis  (Mob.  423,  429),  495, 

523,  560a,  565,  574. 
Hurley  v.  Van  Wagner  (28  Barb. 

109),  214. 
Hutchinson  v.  Woodruff  (57  N.  J. 

530),  165. 
Hyde  v.  Melvin  (11  Johna  530),  567. 


Inglis  V.  Trustees  of  Sailor's  Snug 
Harbor  (3  Pet  160),  21. 

Inhabitants  of  Cummington  v.  In- 
habitants of  Springfield  (2  Pick. 
394),  21. 

Inhabitants  of  Manchester  v.  In- 
habitants of  Boston  (16  Mass. 
230),  21. 

Inspectors  of  Election,  In  re  (25  N. 
Y.  Sup.  1063),  63a. 

Irwin's  Case  (43d  Cong.),  637. 

Isaacs  V.  McNeil  (44  Fed.  Rep.  33), 
29a 

Ivey,  Ex  parte  (26  Fla.  537),  387. 


Jackson  V.  Hampden  (30  Me.  87), 

652. 
Jackson  v.  Walker  (5  Hill,  N.  Y., 

27),  213,  214 
Jackson  v.  Wayne  (CL  &  H.  47), 

247,  248. 
Jackson  v.  White  (20  Johns.  313),  21. 


Jeffries  v.  Ankeney  (11  Ohio,  872), 

289. 
Jenkins  v.  Baxter  (160  Pa.  St  199), 

671. 
Jenkins  v.  Waldron  (11  Johns.  114), 

289. 
Jennings  v.  Reynolds  (4  Kan.  110), 

319. 
Johnson  v.   Board  of   Canvassers 

(101  Mich.  187;  59  N.  W.  Rep. 

413),  730. 
Johnson  v.  People  (94  III  505),  97. 
Johnson  v.  State  (138  Ind.  16),  211. 
Johnston  v.  Jones  (23  N.  J.  Eq.  216), 

671. 
Johnston  v.  Russell  (37  CaL  670), 

219. 
Jones  V.  Black  (43  Ala.  540),  387. 
Jones  V.  Board,  etc.  (56  Miss.  766, 

768),  125. 
Jones  V.  Glidewell  (53  Ark.  161), 

564. 
Jones  V.  Gridley  (30  Kan.  584),  181. 
Jones  V.  Shelley  (2  Ells.  681),  448. 
Jones  V.  State  (1  Kan.  273),  227, 228. 
Jordan  v.  Bailey  (37  Minn.  174),  153. 
Judah  V.  Am.  Ins.  Co.  (4  Ind.  333), 

652w 
Judkins  v.  Hill  (50  N.  H.  140),  574, 

576. 
Junker  v.  Commonwealth  (20  Pa. 

St  484,  493),  161,  22a 

K. 

Kane  v.  People  (4  Neb.  509),  267, 

435. 
Keenan  v.  Cook  (12  R  I.  153),  264. 
Keith  V.  Clark  (97  U.  S.  454),  13. 
Keller  v.  Chapman  (34  CaL  635), 

238,  456. 
Kelsey  v.  Wright  (1  Root,  Conn., 

83),  670. 
Kemp  V.  Owens  (76  Md.  235),  88. 
Kenfield  v.  Irwin  (53  CaL  164),  181, 


TABLE   OF   CASES   CITED. 


xU 


Beferences  are  to  sectiona 


Kennedy,  Ex  parte  (23  Tex.  App. 

77),  147. 
Kentucky  Election  (2  Bart.  327), 

319. 
Kerr  v.  Trego  (47  Pa.  St.  292),  306, 

317,  621,  627,  628. 
Key  V.  Vattier  (1  Ohio,  132),  586. 
Keyser  v.  McKissan  (2  Rawle,  139), 

251. 
Kilbourn  v.  Thompson  (103  U.  S. 

168),  640. 
Kilham  v.  Ward  (2  Mass.  236),  21, 

289. 
Kinierer  v.  State  (129   Ind.  589), 

311. 
King  V.  Clark  (2  East,  70),  405. 
King  V.  Hawkins  (10   East,  211), 

327. 
King  V.  Mayor  (2  T.  R  260),  402. 
King  V.  Plympton    (2    Ld.   Raym. 

1377),  333. 
King  V.  Rees  (Garth.  393),  405. 
King  V.  Winchester  (7  Ad.  &  E. 

215),  402. 
Kingery  v.  Berry  (94  111.  515),  478. 
Kinneen  v.  Wells  (144  Mass.  497), 

36,  134 
Kirk  V.  Rhoads  (46  Cal.  398),  433, 

538,  720. 
Kisler  v.  Cameron  (39  Ind.  488),  290, 

421,  422. 
Kline  v.  Verree  (1  Bart  381),  372, 

471. 
Kneass'   Case   (2    Para   553,    599; 

Bright.  Elec.  Cas.  260,  337, 366), 

391,435,437,439,441,454. 
Knote  V.  United  States  (95  U.  S. 

149),  125. 
Knowles  v.  Yeates  (31  Cal.  82),  161. 
Knowlton  v.  Ackley  (8  Cush.  93), 

655. 
Knox  V.  Blair  (1  Bart.  521),  450, 571, 

683. 
Knox  County  v.  Davis  (63  111.  405), 

576. 


Koehler  v.  Hill  (60  Iowa,  543),  34. 
Koontz   V.  Coffroth  (2  Bart.  25), 

514. 
Kortz  V.  Green  County  Canvassers 

(12  Abb.  84).  261. 
Kraleman  v.  Sippel  (57  Ma  App. 

598),  456. 
Kreitz  v.  Behrensmeyer   (125  111. 

141),  78, 105,  226,  433,  435c,  437, 

460,  53L 

L. 

Lafayette,  City  of,  v.  State  (69  Ind. 

218),  176. 
Lane  v.  Brainard  (30  Conn.  566), 

653. 
Langhammer  v.  Munter  (80  Md. 

518),  88.  470. 
Langston  v.  Venable  (Row.  435), 

582a. 
Langtry,  In  re  (31  Fed.  Rep.  879), 

71. 
Lankford  v.  Gebhart  (130  Mo.  631), 

98,  172,  723. 
Lanman,  Case  of  (CI.  &  H.  871),  359. 
Lanning  v.  Carpenter  (20  N.  Y.  447), 

48. 
Lansing  v.  Lansing  (8  Johns.  454), 

219. 
Lamed  v.  Wheeler  (140  Mass.  390), 

290. 
Las  Portas  v.  De  La  Motta  (10  Rich, 

Eq.  Rep.  38),  86. 
Lawrence  v.  Knight  (1  Brewst.  67; 

S.  C,  Bright.  Elec.  Cas.  617),  387. 
Lawrence  v.  Schmaulhausen  (123 

IlL  321).  263. 
Lawrence  v.  Sypher  (43d  Cong.),  44. 
Lay  v.  Parsons  (104  Cal.  661;    38 

Pac.  Rep.  447),  720. 
Led  better  v.  Hall  (62  Ma  422),  226, 

548. 
Lee   V.   Rainey  (Smith,  589),   529, 

531. 


xlii 


TABLE    OF   CASES   CITED. 


References  are  to  sections. 


Lehlbach  v.  Haynes  (54  N,  J.  L.  77), 

222,  581. 
Lehman  v.  McBride  (15  Ohio  St. 

573),  156. 
Leigh  V.  State  (69  Ala.  261),  261, 

264. 
Lelar's  Case  (2  Pars.  548),  437. 
Le  Moyne  v.  Farwell  (Smith,  406), 

104,  524. 
Leonard  v.  Commonwealth  (112  Pa. 

St  607),  220. 
Letcher  v.  Moore  (CL  &  H.  715, 749, 

843),  117,  239,  272,  469. 
Lewis  v.  Commissioners  (16  Kan. 

102),  269. 
License  Cases  (5  How.,  U.  S.,  504, 

585),  70. 
Lincoln  v.  Hapgood  (11  Mass.  350, 

359),  97,  99,  289,  290. 
Lindstrom  v.  Board  of  Canvassers 

(94  Mich.  467;  54  N.  W.  Rep. 

280),  538,  706,  721. 
Littell  V.  Bobbins  (1  Bart.  138),  274. 
Little  V.  State  (75  Tex.  616),  495. 
Littlefield    v.    Green    (1    Chicago 

Legal  News,  230;  S.  C,  Bright 

Elec.  Cas.  493),  511,  58a 
Lloyd  V.  Sullivan  (9  Mont  577),  515, 

574,  583. 
Locke's  Appeal  (73  Pa.  St  491;  13 

Am.  Rep.  716),  198. 
Locust  Ward  Election  (4  Pa,  Law 

J.  293,  349),  164,  492. 
Lombard  v.  Oliver  (7  Allen,  155), 

290,  29a 
Londoner  v.  People  (15  Cola  557), 

571. 
Long  Island  R.  R  Ca,  In  re  (19 

Wend.  37),  647,  668. 
Loomis  V.  Jackson  (6  W.  Va.  613), 

87& 
Lord  V.  Dunster  (79  CaL  477),  435&, 

456. 
Loval  V.  Meyers  (1   Bailey,  486), 

218. 


Lowe  V.  Wheeler  (2  Ells.  61),  141, 

274,  466a,  511,  5395, 
Lower  Oxford  Contested  Election 

(3  Pa.  Co.  Ct.  323),  98. 
Lowry  v.  White  (Mob.  623),  78,  330. 
Loyall  v.  Newton  (CL  &  H.  520), 

465,  491. 
Lucas  V.  Ringsrud  (3  S.  D.  355;  53 

N.  W.  Rep.  426),  697,  709. 
Luce  V.  Maybe  w  (13  Gray,  83),  510. 
Lunsford  v.  Ciilton  (Ky.,  23  S.  W. 

Rep.  946),  426. 
Luther  v.  Borden  (17  U.  a  15),  4, 18. 
Luzerne  County  Election  Case  (3 

Pa.L  J.  155),  537. 
Lyman  v.  Martin  (2  Utah,  136),  63. 
Lynch  v.  Chalmers  (2  Ells.  838), 

457,  535,  538. 
Lynch  v.  Chase  (55  Kan.  367;  S.  C, 

40  Pac.  Rep.  666).  355. 
Lyon  V.  Smith  (CL  &  H.  101),  181. 

M. 

Mackey  v.  O'Connor  (2  Ells.  561), 

456a 
Mackin  v.  United  States  (117  U.  S. 

348),  121,  332. 
Madden,  In  re  (148  N.  Y.  136),  702. 
Maddendorf 's  Case  (4  Pa.  Dist  Rep. 

78),  107. 
Madison,  City  of,  v.  Wade  (88  Ga. 

699),  126,  210. 
Maize  v.  State  (4  Ind.  342),  198. 
Major  V.  Barker  (Ky.,  35  a  W.  Rep. 

543),  326,  488. 
Maiden's    Case    (Cush.  Elea  Cas. 

377),  67. 
Mallett  V.  Plumb  (60  Conn.  852), 

473. 
Mallory  v.  Merrill  (CL  &  H.  828), 

201,  236. 
Mann  v.  Cassiday  (1  Brewst.  82), 

442,  454,  523. 
Manzanares  v.  Luna  O^ob.  61),  448. 


TABLE   OF   OASES   CITED. 


xLiii 


Beferencea  are  to  sectiona 


Marbury  v.  Madison  (1  Cr.  137),  307. 
March,  Lord,  v.  Pigott   (5  Burr. 

2803),  218. 
Marre  v.  Garrison  (13  Abb.  New 

Cases,  210),  660. 
Marshall  v.  Kerns  (2  Swan,  66,  68), 

158,  264 
Marshall  County  v.  Cook  (38  111. 

444),  181. 
Martin  v.  Commonwealth  (1  Masa 

347,  397),  21. 
Martin  v.  Miles  (40  Neb.  135),  478. 
Mason  v.  Gates  (2  Ella  8),  452. 
Massey  v.  Wise  (Mob.  365),  339a. 
Matteson  Case  (38th  Cong.),  362. 
Matthews  v.  Board  (34  Kan.  606), 

181. 
Mauston    v.  Mcintosh    (58    Minn. 

525),  704. 
Maxwell  v.  Cannon  (Smith,  182), 

625. 
Mayfleld  v.  Moore  (Bright.  Elec 

Caa  605).  367. 
Maynard  v.  Board  of  District  Can- 
vassers (84  Mich.  228),  212. 
Maynard  v.  Stillson  (Mich.,  66  N. 

W.  Rep.  388),  581. 
Mayo    V.   Freeland    (10   Ma    629), 

264. 
Mayor  v.  Rainwater  (47  Misa  547), 

416. 
McCafferty  v.  Guyer  (Bright.  Elec. 

Caa  44;  s.  a,  59  Pa.  St  109),  52, 

61. 
McCall    V.  Bryan   (6    Conn.   428), 

670. 
McCoUough  V.  State  of  Maryland 

(4  Wheat.  404),  22,  32. 
McCoppin,  In  re  (5  Sawy.  630),  79. 
McCoy  V.  Boyle  (51  N.  J.  L  53;  8.  a, 

16  Atl.  Rep.  15),  435a. 
McCullough,  In  re  (12  PhiL  570), 

482. 
McCullough  V.  Helwig  (7  AtL  Rep. 

454),  600. 


McDaniel's  Case  (8  Pa.  Law  J.  310; 

8.  c.  Bright.  Elec.  Caa  238),  96, 

97,  100,  494,  495. 
McDaniel  v.  Manufacturing  Co.  (22 

Vt.  274),  652,  653. 
McDougall  V,  Gardener  (L.  R  1  Ch. 

Div.  14),  652. 
McDowell  V.  Rjitherford,  etc.  Co. 

(96  N.  C.  514;  s.  a,  17  Am.  & 

Eng.  Corp.  Caa  412),  210,  527. 
McDuffie  V.  Davidson  (Mob.  577), 

478,  515. 
McFarland  v.  Culpepper  (CL  &  H. 

221),  247. 
McGee  v.  Supervisors  (10  CaL  376), 

419. 
McGregor  v.  Balch  (14  Vt  428),  251. 
McGuire  v.  State  (7  Humph.  54), 

587,  615. 
McHenry  v.  Jewett  (26  Me.  453), 

645,  646. 
Mcllvaine  v.  Cox's  Lessee  (4  Cranch, 

209),  21. 
Mcllwee,  Ex   parte  (3  Am.  Law 

Times,  251;  s.  C,  Bright  Elec. 

Caa  65),  42. 
McKay  v.  Campbell  (3  Abb.,  U.  S.. 

120),  42. 
McKenzie,  Case  of  (1  Bart  460), 

169. 
McKenzie  v.  Braxton  (Smith,  19), 

498,  511,  528,  535. 
McKenzie  v.  Kitchen  (1  Bart  468), 

169. 
McKinney  v.  O'Connor  (26  Tex.  5), 

228. 
McKinney  v.  Peers  (91  Va.  684),  261, 

262,  267. 
McKinnon  v.  People  (110  III  805), 

543. 
McKittrick  v.  Pardee  (S.  D.,  65  N. 

W.  Rep.  23),  720. 
McKune  v.  Weller  (11  Cal.  49),  185. 
McLean  v.  Brodhead  (MoU   888), 

184. 


xHt 


TABLE   OF   CASES   CITED. 


References  are  to  sections. 


McLean  v.  Hobbs  (74  Md.  116),  88. 
McMahon  v.  Mayor  (66  Ga.   217; 

S.  C,  42  Am.  Rep.  65),  49,  127. 
McMaster  V.  Herald  (56  Kan.  231; 

a  a,  42  Pac.  Rep.  697),  355. 
Meacham  v.  Dow  (32  Vt  721),  221. 
Mead  v.  Carroll  (6  D.  C.  338),  261. 
Mechanics'  Nat.  Bank  v.  Manufact- 
uring Co.  (32  N.  J.  Eq.  236),  671. 
Meeker  v.  Munthrop  (17  Fed-  Rep. 

49),  643. 
Melvin's  Case  (68  Pa.  St.  333),  161. 
Mercer,  John  F.,  Case  of  (CI.  &  H. 

44),  362. 
Meredith  v.  Ladd  (2  N.  R  517),  333. 
Merrick  v.  Brainard  (38  Barb.  574), 

658. 
Merrick  v.  Van  Santvoord  (34  N.  Y. 

208),  658. 
Merrill  v.  Whitmire  (110  N.  C.  367), 

88. 
Merritt  v.  Hinton  (55  Ark.  12),  479. 
Meservey,  Case  of  (1  Bart  148),  244 
Middendorfs  Case  (4  Pa.  Dist  Rep. 

78),  141. 
Middle  brook    v.    Bank    (3   Keyes, 

N.  Y.,  135),  649. 
Miller  v.  Elliott  (Row.  504),  134 
MiUer  v.  Emer  (27  Me.  509),  658. 
Miller  v.  English  (1  Zab.  317),  158. 
Miller  v.  Lowry  (5  Phil.  202),  387. 
Miller  V.  Pennoyer(23  Oreg.  364;  31 

Pa&  Rep.  830X  706. 
Miller  v.  Rucker  (1  Bush,  Ky.,  135), 

289. 
Miller  v.  Thompson  (1  Bart  118),  98. 
Milliken  v.  Fuller  (1  Bart  176),  248. 
Mills  V.  Green  (67  Fed.  Rep.  818), 

128. 
Minear  v.  Tucker  (39  W.  Va.  627), 

242. 
Minor  v.  Happersett  (53  Mo.  58),  6a 
Minor  v.  Happersett  (21  WalL  178), 

3,  36,  646. 
Misch  V.  RusseU  (136  UL  32),  340a. 


Mitchell,  In  re  (81  Hun,  401),  178. 
MoflFett  V.  Hill  (131  111.  239),  8a 
Mohawk,  etc  Co.,  In  re  (19  Wend. 

135),  649. 
Monroe  v.  Collins  (17  Ohio  St  665), 

44, 132. 
Monroe  v.  Jackson  (1  Bart  98),  104. 
Montgomery  v.  Odell  (67  Hun,  169), 

230,  532,  705. 
Montgomery  v.  Oldham  (143  Ind. 

137;  S.  C,  42  N.  K  Rep.  474), 

719. 
Moore  v.  Hoisington  (31  III  243), 

386,  387. 
Moore  v.  Jones  (76  N.  C.  182),  262. 
Moran  v.  Rennard  (3  Brewst  601), 

289. 
Morgan  v.  Board  (24  Kan.  71),  181. 
Morgan  v.  Dudley  (18  B.  Mon.  693), 

74,  289. 
Morgan  v.  Gloucester  (44  N.  J.  Law. 

137),  181. 
Morgan  v.  Quackenbush  (22  Barb. 

72),  263,  265. 
Morris  v.  Powell  (125  Ind.  281),  52, 

126. 
Morris  v.  State  (7  Ind.  607),  602, 619. 
Morris   v.    Van  Lanningham    (11 

Kan.  269),  22a 
Morrison  v.  Springer  (15  Iowa,  304), 

156,  157. 
Morton  v.  Daily  (1  Bart  402),  93, 

309,  310. 
Mott  V.  Connolly  (50  Barb.  516). 

367. 
Mott  V.  Railroad  (30  Pa.  St  9),  628. 
Motter  V.  Primrose  (23  Md.  482), 

655. 
Moulton  V.  Reid  (54  Ala.  820),  317, 

386. 
Moyer  v.  Van  de  Venter  (12  Wasli. 

377),  231,  717. 
Mudge  V.  Jones  (59  Mich.  165),  6a 
MulhoUand  v.  Bryant  (39  Ind-  363), 

538. 


TABLE   OF   CASES   CITED. 


xlv 


Beferences  are  to  sections. 


Munf  ord,  Case  of  (CL  &  H.  316),  340. 
Murdock  v.  Weimer  (55  111.  App. 

537),  108. 
Murphy,  Ex  parte  (7  Cow.  1-53),  396, 

522. 
Murphy  v.  Battle  (155  111.  182;  40 

N.  E.  Rep.  470),  478,  706. 
Murphy  v.  Ramsey  (114  U.  S.  15),  45. 
Myer  v.  Chalmers  (60  Miss.  772),  415. 
Myers  v.  Moffatt  (2  Bart.  564),  113. 

K 

Napier  v.  Mayhew  (35  Ind.  276),  539. 
Nash  V.  Craig  (Mo.,  35  S.  W.  Rep. 

1001),  441. 
Nathan  v.  Tompkins  (82  Ala.  437), 

670. 
Neal  V.  Shinn  (49  Ark.  227),  216. 
Neff  V.  Shanks  (43d  Cong.),  539. 
Nelzger  v.  Railroad  Co.  (36  Iowa, 

642),  135. 
Newcum  v.   Kirtley  (13  B.  Mon. 

515),  162,  558. 
New  England  Mutual  Ins.  Co.  v. 

Phillips  (141  Mass.  535;  S.  C,  13 

Am.  &  Eng.  Corp^  Cas.  104), 

671. 
New  Jersey  Case  (1  Bart.  19),  315, 

467,  483,  484. 
Newland  v.  Graham  (1  Bart.  5),  230, 

484,  486. 
Newsom  v.  Earnheart  (86  N.  C.  391), 

139. 
Newton  v.  Newell  (26  Minn.  529), 

392,  478,  543. 
Niblack  v.  WaUs  (Smith,  101),  202, 

203,  463,  527a. 
Nicholson  V.  Mudgett  (23  Vt.  546), 

220. 
Norris,  Ex  parte  (8  a  C.  408),  432. 
Norris  v.  Handley  (Smith,  68),  266, 

463,  519,  566. 
Northcote    v.   Pulsford  (L.  E.  10 

C.  P.  476,  483),  706. 


North  Shore  Ferry  Co.,  In  re  (63 
Barb.  556),  649. 

North  Whitehall  v.  South  White- 
hall (3  S.  &  R  116),  277. 

Norton  v.  Shelby  County  (118  U.  S. 
425),  255. 

Norwood's  Case  (42d  Cong.),  151. 

o. 

O'Conner  t.  Mayor  (1  Seld.  285),  368. 
O'Connor  v.  State  (9  Fla.  215),  84. 
O'Farrell  v.  Colby  (2  Minn.  180),  364, 

369,  385. 
Oglesby  v.  Sigman  (58  Miss.  503), 

539. 
O'Gorham  v.  Richter  (31  Minn.  35), 

260. 
O'Hair  v.  Wilson  (134  III.  351),  99, 

228. 
O'Harra  v.  Powell  (80  N.  C.  103), 

377. 
Ohio,  etc.  R.  R  V.  McPherson  (35 

Mo.  13),  658,  659. 
Oldknow  V.  Wainwright  (I  Black- 
stone,  229),  167. 
Olive  V.  O'Reily  (Minor,  Ala.,  410),  6a 
Opinions  of  Attorneys-General  (vol. 

1,  631),  364. 

Opinions  of  Attorneys-General  (vol. 

2,  525),  364 

Opinions  of  Attorneys-General  (voL 

3,  673),  364. 

Opinions  of  Attorneys-General  (vol. 

4,  523),  364 

Opinions  of  Attorneys-General  (vol. 

7,  186),  364 
Opinions  of  Attorneys-General  (voL 

10,  356),  364 

Opinions  of  Attorneys-General  (vol. 

11,  179),  364 

Opinions  of  Attorneys-General  (vol. 

12,  32),  364 

Opinions  of  Attorneys-General  (voL 
12,  449),  364 


xlvi 


TABLE   OF   CASES   CITSD. 


Beferenoes  are  to  sections. 


Opinions  of  Attorneys-General  (voL 

14.  538).  364 
Opinions  of  Judges  (1  Cush.  Elea 

Cas.  436),  101. 
Opinions  of  Judges  (1  Cush.  Elec. 

Cas.  120),  67. 
Opinions  of  Judges  (32  Me.  547, 597), 

329. 
Opinions  of  Judges  (5  Met.,  Mass., 

587,  591),  101,  111. 
Opinions  of  Judges  (1  Met,  Mass., 

580),  88. 
Opinions  of  Judges  (1  Cush.  Elec. 

Cas.  120),  67. 
Opinions  of  Judges  (18  Pick.,  Mass., 

575),  108. 
Opinions  of  Judges  (30  Conn.  591), 

156. 
Opinions  of  Justices  (117  Mass.  599), 

271. 
Opinions  of  Justices  (64  Me.  596), 

529. 
Opinions  of  Justices  (68  Me.  587), 

243. 
Opinions  of  Justices  (70  Me.  565, 

570),  526,  529,  713. 
Opinions  of  Justices  (44  N.  H.  633), 

156. 
Opinions  of  Justices  (53  N.  H.  640), 

280. 
Opinions  of  Justices  (58  N.  H.  621), 

261. 
Ormsby  v.  Vermont,  etc.  Mining 

Co.  (56  N.  Y.  623),  658. 
Oters  V.  Gallegos  (1  Bart.  177),  69, 

429. 
Overseers  v.  Sears  (23  Pick.  122), 

670. 

P. 

Page  V.  Allen  (58  Pa.  St.  338, 347),  61. 
Page  V.  Hardin  (8  B.  Mon.  648),  347, 

353,  354,  36a 
Page  V.  Kuykendall  (161  IlL  819), 

542. 


Page  V.  Letcher  (11  Utah,  119;  s.  a, 

39  Pac.  Rep.  499),  261,  411. 
Palmer  v.  Downer  (2  Mass.  179,  n.), 

21. 
Palmer  v.  Foley  (36  Sup.  Ct.  N.  Y. 

14),  380. 
Parker  v.  Commonwealth  (6  Pa,  St. 

509),  197. 
Parker  v.  Orr  (158  111.  609),  720. 
Parsons  v.  Bedford  (3  Pet  433,  446), 

72. 
Parvin  v.  Wimberg  (130  Ind.  561), 

172,  225,  716,  720. 
Passenger  Cases  (7  How.  518,  556), 

70. 
Patterson  v.  Barlow  (60  Pa,  St  54), 

61, 129,  130. 
Patterson  v.    Belford  (1  Ells.   52). 

142,  167,  180. 
Patton  V.  Coates  (41  Ark.  Ill),  484 
Patton  V.  Vaughn  (39  Ark.  211),  355. 
Pearce  v.  State  (1  Sneed,  63),  606. 
Peard  v.  State  (34  Neb.  372),  225, 

233. 
Pearson  v.  Board  (91  Va.  332),  48, 

714,  718. 
Peavey  v.  Robbins  (3  Jones,  N.  C, 

339),  289. 
Peck  V.  Weddell  (17  Ohio  St  271). 

386,  387,  389. 
Peck  V.  Young  (26  Wend.  613,  622), 

84 
Pedigo  V.  Grimes  (118  Ind.  148),  98, 

101,  391,  492. 
Pender  v.  Lushington  (K  R  6  Ch, 

Div.  70),  649. 
Penhallow  v.   Doane's  Adm'rs   (3 

DalL  93),  13,  16. 
Pennington  v.  Hare  (60  Minn.  146), 

231,  537,  720. 
Pennsylvania     District     Election 

Cases  (Bright  Elec  Cas.  617), 

277. 
Pennsylvania    District      Election 

Cases  (2  Pars.  526),  163. 


TABLE   OF   CASES   CITED. 


xlvii 


Beferences  are  to  sections. 


People  V.  Albany  County  Canvass- 
ers (46  Hun,  390),  267. 

People  V.  Albertson  (55  N.  Y.  50), 
366. 

People  V.  Allen  (6  "Wend.  486),  282. 

People  V.  Ammons  (5  Gilm.,  111., 
107),  251. 

People  V.  Avery  (102  Mich.  572), 
178,  706.  712. 

People  V.  Barber  (48  Hun,  198),  606. 

People  V.  Bates  (11  Mich.  362),  172, 
228,  233. 

People  V.  Batchelor  (22  N.  Y.  134), 
652,  653,  654. 

People  V.  Bell  (54  Hun,  567),  124, 287. 

People  V.  Bidleman  (69  Hun,  596), 
226. 

People  V.  Board  of  Aldermen  (65 
Hun,  300),  379. 

People  V.  Board  of  Canvassers  (18 
N.  Y.  Sup.  302),  539. 

People  V.  Board  of  County  Can- 
vassers (129  N.  Y.  395),  721. 

People  V.  Board  of  Governors  of 
Albany  Hospital  (61  Barb.  397), 
605. 

People  V.  Board  of  State  Canvass- 
ers (129  N.  Y.  360),  261. 

People  V.  Board  of  Supervisors  (135 
N.  Y.  522),  405,  535. 

People  V.  Boas  (29  Hun,  377),  600. 

People  V.  Brenham  (3Cal.  477),  176. 

People  V.  Brown  (11  111.  478),  210. 

People  V.  Bull  (46  N.  Y.  57),  366. 

People  V.  Burden  (45  Cal.  241),  474, 
476. 

People  V.  Burns  (75  CaL  627),  287. 

People  V.  Cady  (143  N.  Y.  100),  104. 

People  V.  Canaday  (73  N.  C.  198),  52. 

People  V.  Canvassers  (11  Mich.  Ill), 
181. 

People  V.  Caruthers  School  Dis- 
trict (102  CaL  184),  179. 

People  V.  Cicott  (16  Mich.  283),  392, 
490,  492,  495,  529. 
D 


People  V.  Cissy  (91  N.  7.  616,  634), 

181,  212. 
People  V.  Clute  (50  N.  Y.  45),  829. 
People  V.  Commissioners  (57  How. 

Prac.  445),  288. 
People  V.  Commissioners  (7  Colo. 

190),  484. 
People    V.    Common    Council    (28 

Mich.  228),  367. 
People    V.    Common    Council    (29 

Mich.  108),  366. 
People  V.  Cook  (14  Barb.  259;  a  C, 

8  N.  Y.  67),  163,  222,  251,  316, 

529,  578.  579. 
People  V.  Cornell  (16  Cal.  187),  120. 
People  V.  Corporationof  New  York 

(3  Johns.  Cas.  79),  402,  404. 
People  V.  Cowles  (13  N.  Y.  350),  176, 

182. 
People  V.  Curamings  (72  N.  Y.  433), 

655. 
People  V.  Detroit  (18  Mich.  388),  402. 
People  V.  Deverman  (83  Hun,  181), 

228. 
People  V.  District  Court  (18  Colo. 

26;  31  Pac.  Rep.  339),  698. 
People  V.  Draper  (15  N.  Y.  532),  366. 
People  V.  Dutcher  (56  111.  144),  196. 
People  V.  English   (29  N.  E.   Rep. 

678),  63a. 
People  V.  Ferguson  (8  Cow.   102), 

529. 
People  V.  Forquer  (Breese,  68),  103, 

402. 
People  V.  Galesburg  (48  IlL  486),  386. 
People  V.  Garner  (47  111.  246),  208. 
People  V.  Gordon  (5  CaL  235),  287. 
People  V.  Green  (58  N.  Y.  296),  335. 
People  V.  Green  County  Canvass- 
ers (12  Abb.  N.  C,  N.  Y,  95),  415. 
People  v.  Hanna  (98  Mich.  517),  52a 
People  V.  Harris  (29  Cal.  678),   587, 

615. 
People  V.  Harshaw  (60  Mich.  200), 

501. 


zlviii 


TABLE    OF   CASES   CITED. 


Beferences  are  to  sections. 


People  V.  Hartwell  (12  Mich.  508), 

176,  184. 
People  V.  Head  (35  la  835),  363. 
People  V.  Hilliard  (39  IlL  413),  418, 

419. 
People  V.  Hoffman  (116  IlL  334, 587; 

3  West.  Rep.  523X  127,  138,  129. 
People  V.  Holden  (38  CaL  134,  139; 

a  c,  Bright  Elea  Cas.  484),  97, 

380,  395,  454,  475,  504,  541. 
People  V.  Holihan  (39  Mich.  116), 

47,95. 
People  V.  Hurlbut  (24  Mich.  44),  366. 
People  V.  Jones  (30  CaL  50),  316,  380, 

39& 
People  V.  Kennedy  (37  Mich.  67), 

629. 
People  V.  Kennedy  (96  N.  Y.  294), 

212. 
People  V.  Kilduff  (15  IlL  493X  263, 

535. 
People  V.  Kings  (105  N.  Y.  180),  368. 
People    V.    Koppelkam    (16  Mich. 

343),  136. 
People  V.  Lathrop  (34  Mich.  335), 

366. 
People  V.  Leonard  (73  CaL  230),  348. 
People  V.  Livingstone  (80  N.  Y.  66), 

473. 
People  V.  Loomis  (8  Wend.  396),  533. 
People  V.  Love  (63  Barb.  535),  545. 
People  V.  Mahaney  (12  CaL  409),  147. 
People  V.  Mahaney  (13  Mich.  481). 

380. 
People  V.  Martin  (1  Seld.,  N.  Y.,  22), 

160. 
People  V.  Martin  (13  CaL  409),  184. 
People   V.  Matteson  (17  IlL   167), 

540. 
People  V.  Maynard  (15  Mich.  463), 

4a 

People  V.  McKinney  (52  N.  Y.  874), 

366. 
People  V.  McManus  (84  Barb.  620), 

540. 


People  V.  McNally  (9  Abb.  N.  Cas. 

648),  78. 
People  V.  McNeal  (63  Mich.   294), 

539. 
People  V.  Miller  (16  Mich.  56),  317. 
People  V.  Murray  (15  CaL  331),  161. 
People  V.  Nelson  (133  IlL  565),  313. 
People  V.  Nordheim(99  IIL  553),  38a 
People  V.  Ohio  Grove  (51  IlL  191X 

193. 
People  V.  Palmer  (53  N.  Y.  83),  336. 
People  V.  Pangburn  (14  Misc.  Rep. 

195),  54a 
People  V.  Pease  (37  N.  Y.  45;  s.  a, 

84  Am.  Dec.  342),  135,  395,  386, 

367,  444,  484,  488,  493,  494,  509, 

539,  548. 
People  V.  Perly  (80  N.  Y.  634),  313. 
People  V.  Phillips  (1  Den.  388),  631. 
People  V.  Police  Commissioners  (10 

Miss.  300;  31  N.  Y.  Sup.  467),  698. 
People  V.   Porter  (6  CaL  36),  184, 

853. 
People  V.  Pratt  (15  Mich.  184),  455. 
People  V.  President  (144  N.  Y.  616), 

700. 
People  V,  Railroad    Co.   (55    Barb. 

844),  652,  654,  661. 
People  V.  Reardon  (49  Hun,  425), 

269. 
People  V.  Regents  (4  Mich.  98),  410. 
People  V.  Riley  (15  CaL  48),  90. 
People  V.  Rives  (27  IlL  341),  418. 
People  V.  Roseborough  (14  CaL  180), 

851. 
People  V.  Roseborough  (39  CaL  415), 

184. 
People  V.  Runkel  (9   Johns.  147), 

670. 
People  V.  Sausalito  (106  CaL   500), 

730. 
People  V.  Saxton  (93  N.  Y.  309X  544, 

545. 
People  V.  Schermerhom  (19  Barb. 

540),  338. 


TABLE   OF   CASES   CITED. 


xlix 


References  are  to  sections. 


People  V.  Schiellein  (95  N.  Y.  124), 

415. 
People  V.  Seaman  (5  Den.  409),  529, 

542. 
People  V.  Shaw  (133  N.  Y.  498),  700. 
People  V.  Sloan  (14  111.  476),  195. 
People  V.  Smyth  (28  Cal.  21),  867. 
People  V.  Staton  (73  N.  C.  546),  251. 
People  V.  Stevens  (5  Hill,  616),  417. 
People  V.  Supervisors    of    Greene 

County  (12  Barb.  217),  269,  402. 
People  V.  Sweetman  (3  Park.  C.  R. 

858),  75. 
People  V.  Thatcher  (7  Lans.,  N.  Y., 

274),  521,  578. 
People  V.  Thompson  (67  Cal.  627), 

181. 
People  V.  Thornton  (25  Hun,  N.  Y., 

458,  555),  33a 
People  V.  Tieman  (8  Abb.  359),  349. 
People  V.  Tieman  (30  Barb.  193),  367. 
People  V.  Tisdale  (1  Doug.,  Mich., 

59),  529. 
People  V.  Twaddell  (18  Hun,  427), 

660,  661,  669. 
People  V.  Vail  (20  Wend.  12),  316, 

374,  503,  522. 
People  V.  Van  Cleve  (1  Mich.  862), 

264 
People  v.  Van  Slyck  (4  Cow.  297), 

262,  512. 
People  V.  Walsh  (9  AbU  N.  Caa  465), 

76,  77. 
People  V.  Wappinger  Falls  (83  Hun, 

130),  177. 
People  V.  Warfield  (20  IlL  163),  208. 
People  V.  Wattles    (13  Mich.  446), 

138. 
People  V.  Wayne  County  Canvass- 
ers (12  Abb.  New  Cas.  7;  8.  C, 

64  How.  Prac.  334),  261,  264. 
People  V.  Webb  (5  N.  Y.  Supp.  355), 

640. 
People  V.  Welles  (11  Cal.  49),  184 
People  V.  White  (24  Wend.  539),  255. 


People  V.  Wiant  (48  IlL  263),  208, 

209. 
People  V.  Wilson  (62  N.  Y.  186),  140.' 
People  V.  Witherell  (14  Mich.  48), 

181. 
People  V.  Wood  (148  N.  Y.  142),  222, 

535,  538,  721. 
Perken,  Ex  parte  (29  Fed.  Rep.  900), 

257. 
Perkins,  Case  of  (1  Bart.  142),  189, 

190. 
Perkins  v.  Carraway  (59  Miss.  222), 

47,  95. 
Perkins  v.  Stevens  (34  Pick.  277), 

125. 
Perry  v.  Reynolds  (53  Conn.   527; 

a  a,  13  Am.  &  Eng.  Corp.  Cas. 

114),  292. 
Perry  v.  Ryan  (68  111.  172),  141, 466a. 
Perry  v.  Whittaker  (71  N.  C.  475), 

527. 
Petit  v.  Rousseau  (16  La.  Ann.  239), 

367. 
Petition  of  Hinkle  (31  Kan.  712), 

255. 
Petty  V.  Tooker  (21  N.  Y.  267),  651. 
Peyton  v.  Brent  (3  Cr.  C.  C.  434), 

316. 
Phelps  V.  Schroeder  (26  Ohio  St. 

549),  262. 
Phelps  and  Cavanaugh,  Case  of  (1 

Bart  248),  192,  245. 
Phelps  of  Vermont,  Case  of  (1  Bart. 

613),  361. 
Phillips  V.  Wickham  (1  Paige,  590X 

175,  660. 
Piatt   V.  People  (29  HI.  54),  164, 

228. 
Pierce  v.  Commonwealth  (104  Pa. 

St.  150),  665. 
Pierce  v.  Getchell  (76  Me.  216),  399. 
Pigott's  Case  (1  Bart.  463),  98. 
Pike  V.  Magoun  (44  Mo.  491),  29a 
Pink  V.  Barr  (14  Phila.  154),  386. 
Pitts  V.  Temple  (2  Mass.  538),  65a 


TABLE    OF   CASES   CITED. 


References  are  to  sections. 


Piatt  V.  Good  (Smith,  650),  135,  216, 

497. 
Plummer  v.  Yost  (144  IlL  68),  63. 
Plurality  Election  (15  R  1. 617;  s.  C, 

8  AtL  Rep.  881),  207. 
Polling  Lists,  In  re  (13  R  I.  729),  127, 

130. 
Pool  V.  Skinner  (Mob.  65),  190. 
Posey  V.  Parrett  (Row.  187),  101, 

44a 
Potter  V.  Bobbins  (CL  &  H.  877), 

149,  359. 
Powell  V.  Holman  (50  Ark.  85),  480. 
Powers  V.  Reed  (19  Ohio  St  189), 

504. 
Pradat  v.  Ramsey  (47  Miss.  24),  481. 
Pratt  V.  Swanton  (15  Vt  147),  181. 
Preston  v.  Culbertson  (58  CaL  198), 

76,  77, 100,  158,  470. 
Price  V.  Baker  (41  Ind.  572),  329. 
Price  V.  Lush  (10  Mont  61),  705. 
Pritchett  v.  People  (1  Gilm.,  IlL, 

525,  529),  251. 
Putnam  v.  Johnson  (10  Mass.  488), 

lOL 

Q. 

Queen  v.  Derby  (7  Ad.  &  R  419), 

402. 
Quinn  v.  Markoe  (37  Minn.  439),  251, 

535. 
Quinn  v.  State  (35  Ind.  486),  51,  608. 

E. 

Rail  V.  Potts  (8  Humph.  225),  289. 
Railroad  Ca  v.  Barss  (39  Ind.  598), 

549. 
Railroad  Ca  v.  Davidson  County 

(1  Sneed,  692),  208. 
Ramsey  v.  Calaway  (15  La.  Ann. 

464),  267. 
Randolph  v.  Good  (3  W.  Va.  551),  52. 
Rathburn  v.  Hamilton  (53  Kan.  470; 

37  Pac.  Rep.  20),  707,  70a 


Reed  v.  Bank  (6  Paige,  337),  660. 
Reed  v.  Corden  (01.  &  H.  853),  211. 
Reeder  v.  Whitfield  (1  Bart  185^ 

189),  371. 
Reid  V.  Julian  (2  Bart.  822),  250, 491, 

516,  573. 
Regina  v.  Cooks  (3  E.  &  B.  249),  668. 
Regina  v.  Cooks  (7  Q.  B.  406),  327. 
Regina  v.  Mayor  (L.  R  2  Q.  B.  629), 

668. 
Reilly  v.  Oglebay  (25  W.  Va.  36), 

654,  669. 
Renner  v.  Bennett  (21  OhioSt451X 

94 
Rex  V.  Atkins  (4  Mod.  12),  670. 
Rex  V.  Bissell  (Heywood,  360),  327. 
Rex  V.  Burden  (4  T.  R  778),  352. 
Rex  V.  Coe  (Heywood,  361),  327. 
Rex  V.  Monday  (Cowp.  537),  327. 
Rex  V.  Parry  (14  East,  549),  327. 
Rex  V.  Thornton  (4  East  432),  670. 
Rex  V.  Vaughn  (4  Burr.  2494),  33a 
Reynolds  v.  McKinney  (4  E^an.  94), 

219. 
Rice  V.  Board    of    Canvassers    (50 

Kan.  149),  268. 
Rice  V.  Foster  (4  Harr.,  DeL,  479, 

485),  197,  375. 
Rich  V.  Flanders  (39  N.  H.  385),  4 
Richards,  John  (CL  &  H.  95,  97), 

201,  205. 
Richardson  v.  Jamison  (55  Kan.  16; 

39  Pac.  Rep.  1050),  720. 
Richardson  v.  McReynolds(114Mo. 

641),  208. 
Ridley  v.  Sherbrook  (3  Coldw.  569), 

46. 
Ried  v.  Kneass  (Bright  Elec  Cas. 

260,  337,  366),  491,  492,  502. 
Rigsbee  v.  Durham  (98  N.  C.  81), 

501. 
Rigsbee  v,  Durham  (99  N.  C.  841), 

459. 
Risohn  v.  Farr  (24  Ark.  161),  46,  52, 

69. 


TABLE   OF   CASES   CITED. 


u 


Beferences  are  to  sections. 


Rodrigues,  Ex  parte  (39  Tex.  705), 

597. 
Roemer  v.  Board  of  Canvassers  (90 

Mich.  27),  267,  412. 
Rogers  v.  Slonaker  (32  Kan.  191), 

852. 
Roller  V.  Truesdale   (26  Ohio  St. 

586),  549a. 
Root  V.  Adams  (CL  &  H.  271),  237. 
Rump  V.  Commonwealth  (6  Pa.  St. 

475),  74. 
Rosenthal  v.  State  Board  of  Can- 
vassers (50  Kan.  129),  268. 
Russell  V.  McDowell  (83  Cal.  70), 

226,  495. 
Russell  V.  State  (11  Kan.  308),  507, 

576,  583. 
Rutledge  v.  Crawford  (91  Cal.  526), 

54a 

S. 

San  Buena  Ventura  Mfg.  Co.  v. 

Vassault  (50  CaL  334),  652,  653. 
Sanders  v.  Gitchell  (76  Me.  158), 

101,  103,  299. 
San  Louis  Obispo  Co.  v.  White  (91 

CaL  432),  232. 
Sanner  v.  Patton  (155  IlL  553;  40 

N.  E.  Rep.  290),  700. 
Santa  Cruz  Water  Co.  v.  Kron  (74 

Cal.  222),  147. 
Sargent  v.  Webster  (18  Met,  Mass., 

497),  653. 
Saunders  v.  Haynes  (18  CaL  145), 

329. 
Savage  v.  BaU  (17  N.  J.  Eq.  142), 

648. 
Sawin  v.  Pease  (Wyo.,  42  Pac  Rep. 

750),  532. 
Sawyer  v.  Hayden  (1  Nev.  75),  147, 

194,  252. 
Sawyer  v.  State  (45  Ohio  St.  343), 

153. 
Schaeffer  v.  Gilbert  (78  Md.  66),  98, 

101. 


Schenk  v.  Peay  (1  DilL  267),  865^ 
School   Directors,   In  re  (12   PhiL 

605),  523. 
School    District   v.    Allerton    (12 

Mass.  105),  670. 
Scott,  Dred,  v.  Sanford  (19  How. 

373),  17,  85a. 
Scoville  V.  Calhoun  (76  Ga.  268),  402. 
Scranton  Borough  Election  (Bright 

Elec.  Cas.  455),  276. 
Secord  v.  Foutch  (44  Mich.  89),  181. 
Seeley  v.  Killoran  (53  Minn.  290), 

427. 
Segar,  Case  of  (1  Bart  414, 426, 577), 

169. 
Segars,  Ex  parte  (32  Tex.  Cr.  Rep. 

533),  158. 
Sego  V.  Stoddard  (136  Ind.  299;  36 

N.  E.  Rep.  204),  226,  537,  720. 
Sego  V.   Stoddard  (136    Ind.   700), 

720. 
Seibold,  Ex  parte  (100  U.  S.  871), 

42, 143,  144,  191,  256. 
Selleck   v.   Common  Council    (40 

Conn.  359),  380. 
Senate  Report  No.  58  (42d  Cong.), 

331. 
Sessinghaus  v.  Frost  (3  Ells.  381), 

136,  527a,  549a. 
Seymour    v.   City   of    Tacoma    (6 

Wash.  427),  178. 
Shaw  V.  Norfolk  R  R.  Ca  (5  Gray, 

152),  658. 
Sheafe  v.  Tillman  (2  Bart  907),  57, 

311. 
Shell  V.  Cousins  (77  Va.  328),  340. 
Shellabarger  v.  Commissioners  of 

Jackson  Co.  (50  Kan.  138),  414. 
Sheppard    v.  Gibbons    (2  Brewst 

128),  495. 
Sheridan  v.  Pinchback  (Smith,  196), 

447. 
Sherlty    v.   Howard    (3    Ch.    Leg, 

News,  230),  219. 
Shiel  V.  Thayer  (1  Bart  349),  155. 


lii 


TABLE    OF   CASES   CITED. 


References  are  to  sections. 


Shields,  James,  Case  of  (1  Bart. 

606),  343. 
Shields  v.  Jacob  (88  Mich.  164;  56 

N.  W.  Rep.  105),  698. 
Shields  v.  McGregor  (91  Mo.  534), 

539,  549a. 
Silvey  v.  Lindsay  (107  N.  Y.  55),  88, 

104. 
Simons  v.  People  (119  IlL  617),  ISa 
Simpson  v.  Osborn  (53  Kan.  328;  34 

Pac.  Rep.  747),  695,  696,  705. 
Sinks  V.  Reese  (19  Ohio  St.  806),  89, 

115. 
Skerret's  Case  (3  Para  509),  437. 
Slaymaker    v.   Phillips  (Wyo.,  40 

Pac.   Rep.   971;    43  Pac.   Rep. 

1049),  126,  336,  699,  716. 
Slee  V.  Bloom  (5  Johns.  Ch.  366), 

670. 
Sleeper  v.  Rice  (1  Bart  472,  699), 

271. 
Sloan  V.  Rawles  (43d  Cong.),  284 
Smalls  V.  Elliott  (Mob.  663),  580. 
Smith,  Ex  parte  (8  S.  C.  495),  432. 
Smith,  Hugh  N.,  Case  of  (1  Bart. 

107),  244. 
Smith,  In  re  (3  N.  Y.  Sup.  107),  130. 
Smith  V.  Brown  (2  Bart.  395),  328. 
Smith  V.  Board  of  County  Com- 
missioners (45  Fed.  Rep.  725), 

135. 
Smith    V.  Crutcher  (93   Ky.  586), 

176. 
Smith  V.  Harris  (18  Cola  274;  32 

Pac  Rep.  616),  708. 
Smith  V.  Jackson  (Row.  9),  115, 158, 

249,  266,  283,  466a,  493. 
Smith  V.  Mining  Co.  (64  Md.  85), 

669. 
Smith  V.  New  York  (37  N.  Y.  518), 

368,  380. 
Smith  V.  Shelley  (2  Ells.  18),  284, 

511. 
Smith  V.  Waterbury  (54  Cona  174), 

868. 


Smyth  V.  McMaster  (2  P.  A.  Browne, 

182),  219. 
Snowball  v.  People  (147  IlL  260), 

153. 
Snyder,  Ex  parte  (64  Mo.  58),  255. 
Sone  V.  Williams  (130  Mo.  530),  437, 

472. 
Soper  V.  Board  of  County  Commis- 
sioners (46  Minn.  274),  163,  222, 

429,  712. 
South  Bay,  etc.  Co.  v.  Gray  (30  Me. 

547),  670. 
South  School  District  v.  Blakesley 

(13  Conn.  227),  654 
Spaulding  v.  Mead  (CI.  &  H.  157), 

201. 
Spaulding  v.   Preston  (21  Vt   9), 

220. 
Spencer's  Case  (Smith,  437),  149. 
Spencer,  In  re  (5  Sawy.  195),  83. 
Spencer  v.  Board  (1  MacArth.  169), 

3,  4,  46.  63,  64 
Spencer  v.  Morey  (Smith,  437),  227, 

260,  504  5ia 
Spidle  V.  McCracken  (45  Kan.  356), 

223,  478. 
Spragins  v.    Houghton  (2  Scam., 

IlL,    377;    s.   a,  Bright  Elec. 

Cas.),  3,  66,  295. 
Sprague  v.  Norway  (31  CaL  173), 

228. 
Spratt  V.  Spratt  (4  Pet  393).  76. 
Spurgin  v.  Thompson  (37  Neb.  39), 

535,  720,  723. 
Stallcup  V.  Tacoma  (13  Wash.  141), 

185. 
Stanton  v.  Lane  (1  Bart  687),  887, 

848. 
State  V.  Adams  (2  Stew.,  Ala.,  239; 

s.  a.  Bright  Elec.  Cas.  286),  61, 

62. 
State  V.  Adams  (65  Ind.  393),  58a 
State  V.  Albin  (44  Mo.  346),  409. 
State  V.  Alder  (87  Wis.  554),  95,  236. 
State  V.  Aldrich  (14  R.  L  171),  98. 


TABLE  OF  OASES  OITED. 


Hii 


Beferences  are  to  sectlona. 


State  V.  Allen  (43  Neb.  651;  62  N. 

W.  Rep.  35),  696,  698. 
State  V.   Anderson  (1  Coxe,  318), 

329. 
State  V.  Andriano  (93  Mo.  70;  s.  C, 

4  S.  W.  Rep.  263),  84,  85. 
State  V.  Babcock  (17  Neb.  188),  209. 
State  V.  Bailey  (7  Iowa,  390),  269. 
State  V.  Baker  (88  Wi&  71),  127, 140. 
State  V.  Barber  (Wyo.,  32  Pac.  Rep. 

14,  26,  28),  705. 
State  V.  Barden  (77  Wis.  601),  537. 
State  V.  Barnes  (3  N.  D.  319),  208. 
State  V.  Basstleld  (67  Mo.  336),  210. 
State  V.  Bate  (70  Wis.  409),  472. 
State  V.  Batt  (38  La.  Ann.  955),  670. 
State  V.  Baxter  (28  Ark.  129),  369. 
State  V.  Bechel  (22  Neb.  158),  209. 
State  V.  Benton  (13  Mont.  306;  34 

Pac  Rep.  301),  701. 
State  V.  Berg  (76  Mo.  186),  186,  270, 

278. 
State  V.  Berry  (14  Ohio  St.  315),  269, 

389. 
State  V.  Binder  (38  Mo.  450),  168. 
State  V.  Bixler  (62  Md.  357),  600. 
State  V.  Black  (53  N.  J.  446, 462),  44, 

699,  727. 
State  V.  Boal  (Cush.  Elec.  Cas.  496; 

S.  c,  46  Mo.  528),  329. 
State  V.  Board  of  Canvassers  of 

Cascade  County  (12  Mont.  537), 

262. 
State  V.  Board  of  Canvassers  of 

Choteau  County  (13  Mont.  23), 

269. 
State  V,  Board  of  Elections  of  Co- 
lumbus (9  Ohio  Cir.  Ct.  Rep. 

134),  64. 
State  V.  Boecker  (56  Mo.  17),  348. 
State  V.  Bonnell  (35  Ohio  St.  10), 

652,  658,  654,  669. 
State  V.  Boone  (98  N.  C.  573),  265. 
State   V.  Bowman  (45    Neb.  752), 

397. 


State  V.  Boyett  (10  Ired.,  N.  C,  336), 

587,  615. 
State  V.  Bruce  (5  Oreg.  68),  608. 
State  V.  Butts  (31  Kan.  537),   127, 

128,  130,  131. 
State  V.  Calvert  (98  N.  C.  580),  265, 

500,  550. 
State  V.  Canvassers  (36  Wis.  498), 

384 
State  V.  Canvassers  (17  Fla.  9),  4ia 
State  V.  Carney  (3  Kan.  88),  417. 
State  V.  Carroll  (17  R  L  591),  178. 
State  V.  Cavers  (22  Iowa,  343),  264. 
State  V.  Churchill  (15  Minn.  455), 

298,  817. 
State  V.  Circuit  Judge  (9  Ala.  338), 

264. 
State  V.  Clark  (3  Nev.  566),  352. 
State    V.   Clayton  (27    Kan,    443), 

352. 
State  V.  Cohoon  (12  Ired.  178),  601. 
State  V.  Collier  (72  Mo.  12;  18  Am. 

Law  Reg.  768),  333. 
State  V.  Collier  (15  Mo.  298),  316. 
State  V.  Collins  (2  Nev.   351),  147, 

253. 
State    V.    Commissioners  (20  Fla. 

859),  139. 
State  V.  Commissioners    (23    Elan, 

264),  270. 
State  V.  Commissioners  (35  Kan. 

640),  401,  507,  571,  584. 
State  V.  Commissioners  (6  Neb.  474), 

209. 
State  V.  Commissioners  (8  Nev.  309), 

417. 
State  V.  Connor  (86  Tex.  133),  226. 
State  V.  Constantino  (40  Ohio  St. 

437),  212. 
State  V.  Corner  (22  Neb.  265),  132. 
State  V.   County  Judge  (7  Iowa, 

186),  269. 
State  V.  Cunningham  (81  Wis.  497), 

34. 
State  V.  Daniels  (44  N.  H.  388),  289. 


Hr 


TABLE   OF  CASES  CITED. 


Beferences  are  to  sections. 


State  V.  Dellwood  (38   La.  Ann. 

1229),  340. 
State  V.  Denison  (46  Kan.  359),  88. 
State  V.  Dillon  (32  Fla.  548),  4, 49, 50, 

110,  126,  147,  700. 
State  V.  Doherty  (25  La.  Ann.  119), 

353. 
State  V.  Douglass  (7  Iowa,  413),  606, 

609. 
State  V.  Dunn    (Minor,  Ala.,  46), 

402. 
State  V.  Dunnewirth  (21  Ohio  St. 

216),  267,  268,  506. 
State  V.  Dustin  (5  Oreg.  375),  333. 
State  V.  EUwood  (12  Wis.  552),  540. 
State  V.  Erickson  (87  Wis.  180),  527. 
State  V.  Ferguson  (31  N.  J.  L.  107), 

352. 
State  V.  Ferris  (42  Conn.  560),  647. 
State  V.  Fitts  (49  Ala.  402),  352. 
State  V.  Fitzgerald  (37  Minn.  26), 

47. 
State  V.   Fitzgerald  (44  Mo.  425), 

380. 
State  V.  Fitzpatrick  (4  R.  L  269), 

614 
State  V.  Foxworthy  (29  Neb.  341), 

540. 
State  V.  Francis  (95  Mo.  44),  210. 
State  V.  Frest  (4  Harr.,  Del,  558), 

97. 
State  V.  Funck  (17  Iowa,  361,  365), 

38Q. 
State    V.   Garesche  (65    Mo.    480), 

412. 
State  V.  Gates  (43  Conn.  533),  529. 
State  V.  Gay  (59  Minn.  6;  60  N.  W. 

Rep.  676),  716,  719. 
State  V.  Gibbs  (13  Fla.  55),  418. 
State  V.  Giles  (1  Chand.  112),  329. 
State  V.  Goetz  (22  Wis.  363),  184 
State  V.  Goflf  (15  R.  L  505),  336. 
State  V.  Goldthwait  (16  Wis.  146), 

540. 
State  V.  Goowin  (69  Tex.  55),  251. 


State  V.  Governor  (1  Dutch,,  N.  J., 

348),  263,  317. 
State  V.  Granville  (45  Ohio  St.  264), 

607. 
State  V.  Green  (78  Mo.  188),  212. 
State  V.  Greer  (78  Mo.   188;    s.  C, 

8  Am.  &  Eng.  Corp.  Cas.  322), 

664 
State  V.  Griffey  (5  Neb.  161),  529, 

533. 
State  V.  Grizzard  (89  N.  C.  115),  97. 
State  V.  Hall  (26  La.  Ann.  58),  443. 
State  V.  Hamil  (97  Ala.  107),  401. 
State  V.  Hanson  (87  Wis.  177),  527. 
State  V.  Harrison  (38  Mo.  540),  264 
State  V.  Hart  (6  Jones,    389),  587, 

615. 
State  V.  Harwood  (36  Kan.  236),  171, 

286. 
State  V.  Hauss  (43  Ind.  105),  348. 
State  V.  Hill  (20  Neb.  119),  262. 
State  V.  Hilmantel  (21  Wis.  566), 

136. 
State  V.  Hilmantel  (23  Wis.  422), 

492. 
State  V.  Hogan  (91  Iowa,  510;  60 

N.  W.  Rep.  108),  720. 
State  V.  Horan  (85  Wis.  94),  23a 
State  V.  Houston  (40  La.  Ann.  393), 

385,  410,  411. 
State  V.  Jenkins  (43  Mo.  261),  147. 
State  V.  Johnson  (17  Ark.  407),  308. 
State  V.  Jones  (19  Ind.  218,  356), 

176,  184  263,  358. 
State  V.  Judge  (13  Ala.  805),  97, 529, 

406,  527&. 
State  V.  Kavanagh  (24  Neb.  506), 

411. 
State  V.  Kempf  (69  Wis.  470),  380. 
State  V.  Kraft  (18  Oreg.  550),  492. 
State  V.  Krueger  (Mo.,  35  S.  W.  Rep. 

604),  603. 
State  V.  Lansing  (46  Neb.  514),  180. 
State  V.  Lean  (9  Wis.  279),  49.  50. 
State  V.  Leavitt  (33  Neb.  285),  129. 


TABLE   OF  OASES   CITED. 


It 


References  are  to  sections. 


State  V.  Lehre  (7  Rich.  Law,  S.  C, 

234),  671. 
State  V.  Lesueur  (103  Ma  253;  15 

S.  W.  Rep.  539),  697,  698,  705. 
State  V.  Lesueur  (Mo.,  38  S.  W.  Rep. 

325),  698. 
State  V.  Livingstone  (1  Houst  C.  C, 

Del,  109),  108. 
State  V.  Lupton  (64  Ma  415),  356. 
State  V.  Macomber  (7  R.  L  349),  587, 

588. 
State  y.  Mason  (14  La.  Ann.  505), 

565. 
State  V.  Mason  (44  La.  Ann.  1065), 

262. 
State  V.  Matthews  (87  N.  H.  450), 

637. 
State  V.  Mayor  (37  Ma  270,  272), 

208. 
State  T.  McClarnon  (15  R.  L  462), 

58a 
State  V.  McDonald  (4  Harr.,  DeL, 

555),  289,  588. 
State  V.  McElroy  (44  La.  796),  547, 

720. 
State  V.  McFadden  (46  Neb.  668), 

262. 
State  V.  McKinney  (25  "Wis.  416), 

181.      . 
State  V.  McMillin  (108  Ma  153;  18 

S.  W.  Rep.  784),  699. 
State  V.  Merchant  (37  Ohio  St.  251), 

662. 
State  V.  Miller  (Ma,  33  a  W.  Rep. 

1149),  603. 
State  V.  Minnick  (15  Iowa,  123), 

598. 
State  V.  Montgomery  (25  La.  Ann. 

119,  138),  341. 
State  V.  Moore  (3  Dutch.  105),  605. 
State  V.  Morris  (12  Am.  Law  Reg. 

82),  199. 
State  V.  Murray  (28  Wis.  96),  346. 
State  V.  Nicholson  (102  N.  C.  465), 

22a 


State  V.  Norris  (37  Neb.  299),  81, 228, 

706. 
State  V.  Noyes  (10  Fost.,N.  H.,279), 

198. 
State  V.  O'Day  (69  Iowa,  368),  222. 
State  V.  O'Harne  (58  Vt  718),  77. 
State  V.  O'Neall  (24  Wis.  149),  198. 
State  V.  Old  (95  Tenn.  723),  126. 
State  V.  Olin  (23  Wi&  309,  327),  215, 

483,  484,  492. 
State  V.  Orris  (20  Wis.  235),  184. 
State  V.  Parker  (26  Vt.  857),  199. 
State  V.  Patterson  (98  N.  C.  598), 

437. 
State  V.  Pearson  (97  N.  C.  434),  602. 
State  V.  Penny  (10  Ark.  621),  84 
State  V.  Philbrick  (84  Me.  562),  586. 
State  V.  Porter  (4  Harr.,  Del.,  556), 

289,  588. 
State  V.  Pritchard  (13  Am.  Law 

Reg.  514),  354. 
State  V.  Purdy  (36  Wis.  213),  215, 

216,  333. 
State  V.  Randall  (35  Ohio  St.  64), 

390.  413. 
State  V.  Ritts  (7  Am.  Law  Reg. 

88),  163. 
State  V.  Robb  (17  Ind.  536X  289, 

295. 
State  V.  Robinson  (1  Kan.  17),  147. 
State  V.  Rodman  (43  Mo.  256),  264, 

309,  402. 
State  V.  Roper  (46  Neb.  730),  401. 
State  V.  Russell  (84  Neb.  116),  225, 

411,  720. 
State  V.  Saxon  (30  Fla.  668),  536. 
State  V.  Scarboro  (110  N.  C.  232), 

135, 137. 
State  V.  Shelley  (15  Iowa,  404),  602. 
State  V.  Sherwood  (15  Minn.  221), 

317. 
State  V.  Skirving  (19  Neb.  497;  &  a, 

27  N.  W.  Rep.  723),  181. 
State  V.  Slover  (126  Ma  652),  378. 
State  V.  Smith  (18  N.  H.  91),  590. 


Ivi 


TABLE   OF   CASES   CITED. 


References  are  to  sections. 


State  V.  Smith  (14  Wia  497),  329, 

346. 
State  V.  Smith  (4  Wash.  St  661), 

165. 
State  V.  Somers  (96  N.  C.  467),  335. 
State  V.  Statem  (6  Cold.  233),  57. 
State  V.  Steers  (44  Mo.  223),  261,  264, 

309,  387. 
State  V.  Steinbom  (Wis.,  66  N.  W. 

Rep.  798),  531,  542. 
State  V.  Stevens  (23  Kan.  456),  333, 

414. 
State  V.  Stinson  (98  N.  C.  591),  437. 
State  V.  Stewart  (96  Ohio  St.  216), 

436. 
State  V.  Stumph  (23  Wis.  630),  136, 

468. 
State  V.  Sullivan  (45  Minn.  309),  346. 
State  V.  Sutterfield  (54  Mo.  391), 

210. 
State   V.  Symonds   (57   Me.    148), 

122. 
State  V.  Taylor  (15  Ohio  St  10, 114), 

387. 
State  V.  Thayer  (31  Neb.  82),  226. 
State  V.  Thrasher  (77  Ga.  671),  399. 
State  V.  Tierney  (23  Wis.  430),  540. 
State  V.  Tissot  (40  La.  Ann.  598), 

369. 
State  V.  Town  Council  (18  R.  L  258), 

62. 
State  V.  Townsley  (56  Mo.  107),  374 
State  V.  Trigg  (72  Ma  365),  270. 
State  V.  Trimbell  (12  Wash.  440), 

261,  269. 
State  V.  Tucker  (32  Ma  App.  620), 

185. 
State  V.  Tudor  (5  Day,  329),  175, 660. 
State  V.  Tuttle  (53  Wis.  45),  49. 
State  V.  Tweed  (3  Dutch.  Ill),  605. 
State  V.  Vail  (53  Ma  97),  329. 
State  V.  Van  Buskirk  (4  N.  J.  L. 

463),  307. 
State  V.  Van  Camp  (36  Neb.  91),  225, 

261,385,547,706. 


State  V.  Walsh  (63  Conn.  26),  528, 

535. 
State  V.  Weed  (60  Conn.  18),  23a 
State  V.  Welch  (21  Minn.  22),  60a 
State  V.  Wells  (8  Neb.  105),  349. 
State  V.  West  (33  La.  Ann.  1261), 

34a 
State  V.  Whittemore  (50  N.  H.  245), 

72. 
State  V.  Whittemore  (11  Neb.  175), 

406. 
State  V.  Williams  (25  Me.  561),  596, 

601. 
State  V.  WilUams  (5  Wis.  308),  49, 

349. 
State  V.  Wilson  (24  Neb.  139),  261. 
State  V.  Winkelmeir  (35  Ma  103), 

209. 
State  V.  Wolf  (17  Oreg.  119),  536. 
State  T.  Wright  (10  Nev.  536),  655. 
State  V.  Wrightson  (56  N.  J.  L.  126), 

212. 
State  v.  Young  (29  Minn.  536),  18. 
Stebbins  v.  Merritt  (10  Cush.  27), 

654 
Steele  v.  Calhoun  (61  Miss.  556), 

539. 
Steele  v.  Meade  (Ky.,  33  a  W.  Rep. 

944),  269. 
Steinwehr  v.  State  (5  Sneed,  586), 

594 
Stemper  v.  Higgins  (38  Minn.  223), 

232,  478. 
Stephens,  Case  of  (4  Gray,  Mass., 

550),  74 
Stephens  v.  People  (89  IlL  337),  153, 

181. 
Sterling  v.  Homer  (74  Md.  573),  96. 
Sterrett  v.  Mc Adams  (Ky.,  34  S.  W. 

Rep.  903),  222. 
Steward   v.  Peyton  (77  Ga.  668), 

408. 
Stewart  v.  Foster  (3  Binn.  110),  66. 
Stewart  v.  Hodges   (3   Ch.    Leg» 

News,  117),  329. 


TABLE   OF   CASES   CITED. 


Ivii 


References  are  to  sections. 


Stewart  v.  Kyser  (105  Cal.  459),  103, 

104. 
Stinson  v.  Sweeney  (17  Nev.  309), 

136,  236. 
Stockdale  v.  Hansard  (9  Ad.  &  E. 

231),  637. 
Stockholders  v.   Railroad  Co.   (12 

Bush,  Ky.,  62),  652. 
Stockton  V.  Powell  (29  Fla.  1),  222. 
Stockton's  Case  (Cong.  Globe,  1865, 

1635),  375. 
Stolbrand  v.   Aikin   (2  Ells.  603), 

448. 
St.  Joseph  Township  v.  Rogers  (16 

Wall.  644),  208. 
St.  Lawrence  Steamboat  Co.,  In  re 

(44  N.  J.  L.  529,  539),  646,  660, 

668,  671. 
St.  Louis  County  Court  v.  Sparks 

(10  Mo.  118),  251,  402. 
Strasberger  v.  Burk  (13  Am.  Law 

Reg.  607),  220. 
Strobach  v.  Herbert  (2  Ella  5),  180, 

531. 
Strong,  Petitioner  (20  Pick.  484), 

270,  418. 
Sturgeon  v.  Korte  (34  Ohio  St.  625), 

97,  98,  104. 
Swann  v.  Burk  (40  Miss.  263),  368. 
Swepston  v.  Barton  (39  Ark.  549), 

337. 
Switzler  v.  Anderson  (2  Bart.  874), 

278,  309. 
Switzler  v.  Dyer  (2  Bart.  777),  309. 
Sykes  v.  Spencer  (43d  Cong.),  629, 

631. 
Sypher  v.  St.  Martin  (3  Bart.  699), 

561,  562. 

T. 

Talbott  V.  Dent  (9  B.  Mon.  526),  208. 
Talcott  V.  Philbrick  (59  Conn.  472), 

538,  706. 
Taliafero  v.  Lee  (97  Ala.  92),  424. 


Taliaferro  v.  Hungerford  (CI.  &  H. 

246),  464. 
Talkington  v.  Turner  (71  111.  334), 

529. 
Tarbox  v.  Sughrue  (36  Kan.  325; 

a  C,  12  Pac.  Rep.  935),  550. 
Taylor  v.  Bleakley  (55  Kan.  1),  720. 
Taylor  v.  Griswold  (2  Green,  222; 

s.  a,  14  N.  J.  L.  323),  175,  642, 

651,  660. 
Taylor  v.  Reading  (3   Bart.    661), 

104,  527a. 
Taylor  v.  Taylor  (10  Minn.  107).  338, 

251, 264. 
Tebbe  v.  Smith  (108  CaL  101),  232, 

471,  537,  719,  720,  721. 
Temple  v.  Mead  (4  Vt.  535),  547, 

548. 
Tennessee     Representatives    (43d 

Cong.),  457,  461. 
Territory  v.  Ashenfelter   (4  New 

Mex.  85),  355. 
Texas  v.  White  (7  Wall.  721),  la 
Thobe  V.  Carlisle  (Mob.  423,   523), 

249,  274,  429,  452,  507. 
Thomas  v.  Hinkle  (35  Ark.  450),  301. 
Thomas  v.  Owens  (4  Md.  189),  59. 
Thompson  v.  Ewing  (1  Brewst.  67, 

68,  69,  77,  103,  400,  404),  61,  96, 

100,  114,  263,  435,  442,  459,  5%B, 

580. 
Thompson  v.  Warner  (Md.,  34  AtL 

Rep.  830),  98. 
Threadgill  v.  Railroad  Co.  (73  N.  C. 

178),  255. 
Todd  V.  Board  of  Election  Commis- 
sioners (104  Mich.  474),  696. 
Todd  V.  Jane  (1  Bart.  555),  450. 
Todd  V.  Stewart  (14  Cal.  386),  437. 
Tomlin  v.  Farmers',  etc  Bank  (52 

Mo.  App.  430),  671. 
Town  of  Fox  v.  Town  of  Kendall 

(97  111.  73),  128. 
Town  of  Highlands,  In  re  (33  N.  Y. 

Supp.  137),  89. 


Iviii 


TABLE   OF   CASES   CITED. 


Beferonoes  are  to  sections. 


Town  of  Valverde  v.  Shattuck  (19 

Colo.  104),  49. 
Trigg  V.  Preston  (CL  «fe  H.  78),  275, 

555. 
Trumbull,  Case  of  (1  Bart  619),  326. 
Trustees  v.  Garvey  (80  Ky.  159),  712. 
Trustees  v.  Gibbs  (2  Cush.  39),  167, 

581. 
Tucker  v.  Aikin  (7  N,  a  113, 140), 

216,  333. 
Tuley  V.  State  (1  Ind.  500),  670. 
TuUos  V.  Lane  (45  La.  333),  88,  488. 
Turner  v.  Drake  (71  Mo.  285),  549a. 
Turney  v.  Marshall  (1  Bart  167), 

326. 
Twitchell  v.  Blodgett  (13  Mich.  27), 

90,  15& 

u. 

Umstead  v.  Buskirk  (15  Ohio  St 

114),  387. 
Underwood  v.  White  (27  Ark.  882), 

4oa 

Union  Insurance    Ca,    In  re  (22 

Wend.  591),  666. 
United  States  v.  Addison  (6  WalL 

291),  367. 
United    States    v.    Anthony    (11 

Blatch.  200),  63. 
United  States  v.  Ballard  (13  Int 

Rev.  Rec.  195),  606. 
United    States    v.    Barnabo    (14 

Blatch.  74),  121. 
United  States  v.  Bayard  (17  Am.  & 

Eng.  Corp.  Gas.  485,498),  411. 
United  States  v.  Bowen  (6  D.  C. 

196),  420. 
United  States  v.  Brown  (58  Fed. 

Rep.  558),  60a 
United  States  v.  Burley  (14  Blatch. 

91),  589. 
United  States    v.  Carruthers   (15 

Fed.  Rep.  309),  599. 


United  States  v.  Chamberlin  (32 

Fed.  Rep.  777),  600. 
United  States  v.  Clark  (22    Fed. 

Rep.  387),  258. 
United  States  v.  Clayton  (10  Am. 

Law  Reg.  737,  739),  273. 
United  States  v.  Conway  (18  Blatch. 

566),  256. 
United  States  v.  Crosby  (1  Hughes, 

448),  36. 
United   States  v.   Cruikshank  (92 

U.  S.  542),  26,  36,  605,  607. 
United  States  v.  Eagan  (30  Fed. 

Rep.  498),  295. 
United  States  v.  Hendrick  (2  Sawy. 

479),  60a 
United  States  v.  Jaques  (55  Fed. 

Rep.  53),  603. 
United  States  v.  Johnson  (2  Sawy. 

482),  603. 
United  States  v.  Kellar  (13  Fed. 

Rep.  82),  84 
United  States  v.  Klein  (18  WalL 

128),  125. 
United  States  v.  Laverty  (3  Mart 

733),  85a. 
United  States  v.  McBosley  (29  Fed. 

Rep.  897),  257. 
United    States    v.    Nicholson    (8 

Woods,  a  C,  215),  143. 
United  States  v.  Norsch  (42  Fed. 

Rep.  417),  76. 
United  States  v.  O'Neill  (2  Sawy. 

481),  60a 
United  States  v.  Paddlef  ord  (9  WalL 

531),  125. 
United  States  v.  Powers  (14  Blatch. 

223),  72. 
United  States  v.  Quin  (Bright  Elec. 

Gas.  592),  4a 
United  States  v.  Quin  (12  Int  Rev. 

Rec  151),  606. 
United  States  v.  Reading  (18  How.» 

U.  S.,  1),  79. 


TABLE   OF   CASES   CITED. 


liz 


References  are  to  sections. 


United  States  v.  Reese  (93  U.  S. 

214),  36,  40,  46. 
United  States  v.  Saunders  (120  U.  S. 

126),  335. 
United  States  v.  Trainor  (36  Fed. 

Rep.  176),  613. 
United  States  v.  Vallejo  (3  Ball. 

372),  70. 
United  States  v.  Watkinds  (7  Sawy. 

85),  120. 
United  States  v.  Wright  (16  Fed. 

Rep.  113),  600. 
United  States  v.  Wright  (1  McLean, 

512),  352. 
Upton,  Case  of  (1  Bart.  368),  169. 

Y. 

Vail   V.  Hamilton  (85  N.  Y.  453), 

645. 
Vailes  v.  Brown  (16  Colo.  462),  443. 
Vallandigham  v.  Campbell  (1  Bart. 

233),  429,  451,  483,  484 
Vallier  v.  Brakke  (S.  Dak.,  64  N.  W. 

Rep.  180,  1119),  720,  723. 
Van  Amringe  v.  Taylor  (108  N.  C. 

196),  34,  253. 
Van  Bokkelen  v.  Canaday  (73  Me. 

198),  537. 
Vandenberg   v.  Railroad    Co.   (29 

Hun,  348),  665. 
Vanderpool  v.  O'Hanlon  (36  Am. 

Rep.  316;  s.  C,  53  Iowa,  246), 

101. 
Van  Horn's  Lessee  v.  Dorrand  (2 

DalL  308),  34. 
Van  Ness,  Case  of  (CI.  &  H.  123), 

336,  348. 
Van  Orsdal  v.  Hazzard  (3  Hill,  343), 

353. 
Van  Valkenburg  v.  Brown  (43  Cal. 

43),  3,  63. 
Van  Valkenburg  v.  State  (11  Ohio, 

404),  586. 
Varney  v.  Justice  (86  Ky.  896),  165. 


Varnum,  Case  of  (CI.  &  H,  112),  439. 
Vint  V.  Heirs  of  King  (3  Am.  Law 

Reg.,  O.  S.,  713),  84. 
Visches  v.  Yates  (11  Johns.  33),  319. 
Vote  Marks,  In  re  (17  R.  L  813),  730. 
Voting  Laws  (12  R.  L  586),  108. 
Vowell  V.  Thompson  (3  Cranch,  C. 

C.  438),  645. 
Voyd  V.  Mills  (53  Kan.  594),  386. 

w. 

Waddill  V.  Wise  (Row.  203),  169. 
Wadsworth   Gaslight,  eta  Co.  v. 

Wright  (18  W.  R.  738),  671. 
Waldo  V.  Martin  (3  Carr.  &  P.  1), 

833. 
Walker  v.  Ferrill  (58  Ga.  513),  349. 
Walker  v.  Sandford  (78  Ga.  165), 

158,  347. 
Walker  v.   Oswald  (68    Md.    146), 

209. 
Wall,  Ex  parte  (48  Cal.  379),  198. 
Wallace  v.  McKinley  (Mob.  185), 

483,  529,  535,  543. 
Wallace  v.  Simpson  (2  Bart  552, 42d 

Cong.  731),  310,  481,  561. 
Walsh  V.  People  (66  III.  58),  333. 
Walton  V.  Beveling  (61  111.  301),  386. 
Ward,  In  re  (30  N.  Y.  Sup.  606),  103, 

104. 
Ward  V.  Sykes  (61  Miss.  649),  376. 
Ware  v.  Hylton  (3  DalL  332),  30,33. 
Warner  v.  Mower  (11  Vt  385),  653, 

657. 
Warner  v.  People  (3  Ben.  272),  368. 
Warren  v.  Registration  Board  (72 

Mich.  398;  2  L.  R.  A.  203),  88. 
Washburn  v.  Ripley  (CL  &  H.  679), 

230,  231. 
Washburn  v.  Voorhis  (3  Bart.  54), 

515,  571,  572. 
Weaver  v.  Given  (1  Brewst.  140), 

513. 
Webb  V.  Ridgely  (88  Md.  364),  671. 


TABLE   OF   CASES   CITED. 


References  are  to  sections. 


Webster  v.  Bymes  (34  Cal.  273), 

527&. 
Weckerly  v.  Geyer  (11  S.  &  R.  35), 

289,  291. 
Weeks  v.  Ellis  (2  Barb.  324),  251. 
Welch  V.  Wetzel  (29  W.  Va.  63), 

178,  283. 
Wells  V.  Bain  (75  Pa.  St.  47),  24,  25. 
Wells  V.  State  Board  of  Canvassers 

(50  Kan.  144),  530. 
Wells  V.  Taylor  (3  Mont.  202;  &  a, 

3  Pac.  Rep.  255),  216. 
West  V.  Ross  (53  Ma  350),  226. 
West  V.  West  (8  Paige,  433),  84 
Westbrook  v.  Roseborough  (14  Cal. 

180),  181. 
West  Virginia  Cases  (Smith,  108), 

194 
Wheat  V.  Smith  (50  Ark.  266),  176. 
Wheeler,  In  re  (2  Abb.  Pr.,  N.  S., 

361),  661. 
Wheeler  v.  Board  of  Canvassers 

(94  Mich.  448),  377. 
Wheeler  v.  Brady  (15  Kan.  26),  63. 
Wheelock's  Case  (82  Pa.  St.  297), 

325. 
Whipley  v.  McKune  (10  Cal.  352), 

251. 
White,  Contested  Election  of  (4  Pa. 

Dist  Rep.  363),  107. 
White,  Ex  parte  (33  Tex.  Cr.  R  594), 

17a 
White  V.  Hart  (18  Wall  646),  la 
White  V.  Multnomah  County  (13 

Oreg.  317),  4,  132. 
Whitney  v.   Blackburn  (17  Oreg. 

564),  426,  440. 
Whitney  v.  Canique  (2  N.  Y.  93), 

339. 
Whitteniore's    Case    (41st    Cong.), 

362. 
Whittman  v.  Zahorek  (91  Iowa,  93), 

730. 
Wigginton  v.  Pacheto  (1  Ells.  5), 

542. 


Wilcocks,  Ex  parte  (7  Cow.  4Q3), 

645,  647. 
Wildman  v.  Anderson  (17  Kan.  544), 

534 
Williams  v.  State   (69   Tex.  868), 

539. 
Williams  v.  Stein  (38  Ind.  89),  548. 
Williams  v.  Whiting  (11  Mass.  424), 

88. 
Williamson  v.  Lane  (52  Tex.  335), 

392. 
Williamson  v.  Shandy  (13  Wash. 

362),  178,  222. 
Williamson  v.  Sickles  (1  Bart  288), 

873. 
Wilson,  Ex  parte  (114  U.  S.  417), 

121,  333. 
Wilson  V.  Central  Bridge  (9  R  L 

590),  649. 
Wilson  V.  Hines  (Ky.,  35  S.  W.  Rep. 

627),  441. 
Wilson  V.  State  (43  Ala.  299),  612. 
Wilson  V,  Town  Council  of  Flor- 
ence (39  S.  C.  897;  40  S.  O.  290), 

210. 
Wimmer  v.  Eaton  (72  Iowa,  874), 

529,  531. 
Winthrop,  Case  of  (1  Bart  607), 

360. 
Wolcott's  Case  (35th  Cong.),  637. 
Wolcott  V.  Holcomb  (97  Mich.  861), 

104  296. 
Wood  V.  Fitzgerald  (3  Oreg.   569), 

129. 
Wood  V.  Peters  (Mob.  79),  326. 
Wood,  etc.  Mining  Ca  v.  King  (46 

Ga.  35),  65a 
Woodley  v.  Clio  (44  S.  C.  374),  63. 
Woods,  In  re  (5  Misc.  575),  261. 
Woodward  v,  Fruitable  San.  Dist. 

(99  CaL  564X  17& 
Worthington  v.   Post  (Mob.   647), 

101. 
Worthy  v.  Barrett  (63  N.  a  199), 

806a 


TABLE   OF  OASES   CITED. 


Izi 


Beferences  are  to  sections. 


Wright  V.  Commonwealth  (109  Pa. 

St.  560),  666. 
Wright  V.  Fuller  (1  Bart.  153),  429. 
Wjman  v.  Lemon  (51  CaL  273),  539. 

Y. 

Yancy,  In  re  (28  Fed.  Rep.  445),  364. 
Yarbrough,  Ex  parte  (110  U.  S.  651, 

663),  37,  46,  145. 
Yeates  v.  Martin  (1  Ells.  52,  484), 

165,  251,  539a. 
Yell,  Case  of  (1  Bart  92),  84a 


Yester  v.  City  of  Seattle  (1  Wash. 

St.  808),  208. 
Yonkin's  County  Election  (2  Pa. 

Co.  Ct.  550),  94 
Young  V.  Deming  (9  Utah,  204),  174 
Young  V.  Simpson  (Colo.,  42  Pacj. 

Rep.  666),  97,  222. 
Yulee  V.  Mallory  (1  Bart  608),  148. 

z. 

Zeis  V.  Passwater  (142  Ind.  375),  537. 
Zeiter  v.  Chapman  (54  Mo.  502),  185. 


AMERICAN  LAW  OF  ELECTIONS. 


CHAPTEK  I. 

THE  EIGHT  TO  VOTR 

^  1.  Suffrage  defined. 

2.  The  object  of  suffrage. 

3.  The  right  to  vote  not  of  necessity  connected  with  citizenship. 

4.  Suffrage  not  a  natural  right. 

5.  The  doctrine  as  stated  in  the  case  of  Anderson  v.  Baker. 

6.  As  stated  in  the  case  of  Blair  v.  Ridgely. 

7.  The  right  to  vote  distinguished  from  the  right  to  practice  a  pro- 

fession or  calling. 

8.  Electors  may  be  disfranchised  by  constitutional  provision. 

9.  The  American  and  English  theories  of  the  right  to  vote  distin- 

guished. 

10.  In  the  United  States,  the  right  of  suffrage  depends  upon  the  will 

of  the  people. 

11.  Who  are  the  people. 

12.  Declarations  upon  the  subject  contained  in  the  Declaration  of 

Independence  and  in  preambles  to  constitutions. 

13.  The  theories  of  early  speakers  and  writers. 

14.  Conclusion  from  the  foregoing. 

15.  Arguments  of  counsel  in  Chisholm,  Ex'r,  v.  State  of  Georgia. 

16.  View  of  the  Supreme  Court  of  the  United  States  in  Penhallow 

V.  Doane's  Adm'rs. 

17.  Doctrine  as  stated  by  Judge  Taney  in  Dred  Scott  v.  Sanford. 

18.  At  the  time  of  the  formation  of  the  Union,  the  people  were  the 

citizens,  independent  of  age  or  sex. 

19.  How  did  the  Constitution  become  binding  upon  the  people. 

20.  The  theory  of  consent  by  ratification. 

21.  View  of  the  Supreme  Court  of  the  United  States  in  Inglis  v. 

Trustees  of  Sailor's  Snug  Harbor. 

22.  View  of  the  same  court  in  Ware  v.  Hylton. 

23.  The  provisions  of  constitutions  binding  upon  all  citizens,  iri  e- 

spective  of  age  or  sex. 
1 


2  ELECTIONS.  [chap.  I. 

§  24    Have  the  people,  by  constituting  the  electors,  surrendered  the 
sovereignty. 

25.  View  of  Supreme  Court  of  Pennsylvania  in  case  of  Wells  v.  Bain, 

to  the  effect  that  the  sovereignty  still  resides  in  the  entire  citi- 
zenship. 

26.  The  same  view  expressed  in  Anderson  v.  Baker,  by  Supreme  Court 

of  Maryland. 

27.  An  investigation  of  the  question  from  a  practical  standpoint. 

28.  Same  subject  continued. 

29.  Is  the  body  politic  sovereign  only  in  theory,  or  is  it  also  sover- 

eign as  a  practical  fact. 

30.  Same  subject  continued. 

81.  The  right  to  fix  the  qualifications  of  voters  is  in  the  people  of  the 
respective  States,  subject  to  limitation  contained  in  Fifteenth 
Amendment. 

83,  Qualifications  of  electors  determined  by  the  people  in  constitu- 
tional conventions. 

33.  Power  of  the  people  to  limit  the  discretion  of  voters  in  the  choice 
of  persons  to  fill  oflSces. 

34  Inability  of  the  people  to  withdraw  political  power,  except  in 
the  manner  provided  by  Constitution. 

85.  Exercise  of  the  elective  franchise  by  a  portion  of  the  commu- 
nity a  fair  and  useful  restriction. 

§  1.  Suffrage  has  been  defined  by  "Webster  as  "  a  voice 
given  in  deciding  a  controverted  question,  or  in  the  choice 
of  a  man  for  an  otfice  or  trust."  According  to  Worcester 
it  is  "  a  voice  or  opinion  of  a  person  in  some  matter,  which 
is  commonly  to  be  determined  by  a  majority  of  voices  or 
opinions  of  persons  who  are  empowered  to  give  them." 

In  the  United  States  suffrage  is  a  privilege,  franchise  or 
trust  conferred  by  the  people  upon  such  persons  as  it  deems 
fittest  to  represent  it  in  the  choice  of  magistrates  or  in  the 
performance  of  political  duties  which  it  would  be  inexpedient 
or  inconvenient  for  the  people  to  perform  in  a  body.  The 
person  upon  whom  the  franchise  is  conferred  is  called  an 
elector  or  voter.  No  community  extends  suffrage  to  all  per- 
sons, but  places  such  restrictions  upon  it  as  may  best  subserve 
the  ends  of  government.^ 

iBxirch  V.  Van  Horn,  2  Bart,  205;  Jamison's  Const.  Con.,  sec.  337; 
2  Wilson's  Works,  Appendix,  p.  570. 


CHAP.  I.]  EIGHT   TO    VOTE.  8 

§  2.  The  object  of  suffrage  is  the  continuity  of  govern- 
ment and  the  preservation  and  perpetuation  of  its  ben- 
efits.i 

In  the  United  States  the  object  of  suffrage  is  twofold: 
First,  to  select  representatives  of  the  people  for  their  govern- 
ment; and  second,  to  determine  the  will  of  the  people  upon 
such  questions  as  may  be  submitted  to  them.  Viewing  suf- 
frage as  a  means  of  selecting  representatives,  it  has  been 
defined  as  "  the  delegation  of  the  power  of  an  individual  to 
some  agent."  ^ 

§  3.  The  right  to  vote  is  not  of  necessity  connected  with 
citizenship.^  The  rights  of  the  citizen  are  civil  rights,  such, 
as  liberty  of  person  and  of  conscience,  the  right  to  acquire 
and  possess  property,  all  of  which  are  distinguishable  from 
the  political  privilege  of  suffrage.  This  has  been  expressly 
held  by  the  Supreme  Court  of  the  United  States*  and  by 
the  courts  of  last  resort  in  California '  and  in  the  District 
of  Columbia,*  where  women,  though  conceded  to  be  citizens 
within  the  meaning  of  the  Fourteenth  Amendment  of  the 
Federal  Constitution,  have  nevertheless  been  denied  the  right 
of  suffrage  as  an  incident  thereto.  The  history  of  the  country 
shows  that  there  is  no  foundation  in  fact  for  the  view  that 
the  right  of  suffrage  is  one  of  the  "  privileges  or  immunities 
of  citizens."  In  some  of  the  States  only  such  citizens  as  were 
freeholders  or  owners  of  personal  property  were  originally 
allowed  to  vote.^ 

1  Cyc.  of  Political  Science,  vol.  3,  p.  822. 

2  Webster's  Works,  vol.  6,  p.  221. 

3  Anderson  v.  Baker,  23  Md.,  531. 

<  Minor  v.  Happersett,  21  Wall.,  162. 

*  Van  Valkenberg  v.  Brown,  48  Cal.,  43. 

6  Spencer  v.  Board  of  Registration,  1  MacArthur,  169,  29  Am.  Rep.,  582. 

^  There  have  been  in  force  at  different  times  in  the  history  of  the 
American  Colonies  and  States,  three  restrictions  on  the  right  of  suf- 
frage: First,  an  educational  qualification;  second,  a  property  or  eco- 
nomic qualification;  and  third,  a  moral  qualification. 

The  original  colonists,  with  unimportant  exceptions,  all  had  a  voice 
in  public  affairs,  but  the  influx  of  men  of  other  blood,  religion  and 


4:  ELECTIONS.  [CHAP.  I. 

In  'New  York  and  ISTorth  Carolina,  negroes,  who  were  not 
citizens,  and  who  were,  in  fact,  incapable  of  becoming  such,^ 
were  granted  the  privilege  under  certain  conditions.  In 
Wisconsin  and  Michigan,  Indians  were  permitted  to  vote,  and 

social  standing  soon  led  them  to  introduce  certain  restrictions  upon 
the  right  of  suffrage,  commonly  based  on  possession  of  property  or  on 
profession  of  religion. 

The  first  legislative  body  that  ever  sat  in  America,  and  which  con- 
vened at  Jamestown,  July  30,  1619,  was  elected  by  all  the  male  inhabit- 
ants. In  Virginia  from  the  first  years  to  1665,  all  settlers  had  a  voice 
in  public  affairs.  After  various  changes  in  the  law,  the  franchise  was 
in  1670  restricted  to  freemen  and  housekeepers,  the  freehold  require- 
ment excluding  all  who  were  not  possessed  of  a  freehold  of  fifty  acres, 
or  a  town  lot  A  similar  requirement  was  made  in  North  Carolina  of 
voters  for  senators.  The  first  legislative  body  in  New  England  met  at 
Plymouth  in  1620,  and  was  composed  of  all  male  inhabitants,  and  this 
township  type  and  school  of  government  was  adopted  in  other  New 
England  settlements. 

The  Massachusetts  charter  of  1691  restricts  suffrage  to  the  possession 
of  an  estate  of  freehold  in  land  of  the  value  of  forty  shillings  per 
annum,  or  other  estate  of  the  value  of  forty  pounds.  In  Maryland 
the  right  of  suffrage  was  limited,  in  1681,  to  freemen  possessing  a 
freehold  of  sixty  acres,  or  having  a  visible  personal  estate  of  forty 
pounds. 

At  the  beginning  of  the  eighteenth  century,  a  freehold  qualification 
had  become  common  in  the  colonies,  and  in  some  cases  pecuniary  qual- 
ifications were  required.  In  the  colonies  of  Massachusetts,  New  Haven, 
and  Connecticut,  church  membership  was  required.  In  New  Hamp- 
shire, Pennsylvania,  Delaware  and  South  Carolina,  the  right  of  suffrage 
was  given  to  all  resident  tax-paying  freemen.  In  Pennsylvania,  the 
eldest  sons  of  freeholders,  over  twenty-one,  could  vote  without  payment 
of  taxes.  In  other  States,  a  pecuniary  qualification  was  required,  ex- 
cept that  in  North  Carolina  resident  tax-paying  freemen  could  vote  for 
members  of  the  Hoixse  of  Commons.  In  New  York,  none  could  vote 
for  Governors  or  Senators  unless  possessed  of  unincumbered  real  estate 
worth  $250,  or  for  members  of  the  Assembly  unless  they  had  freeholds 
worth  $50,  or  paid  $10  annual  rent.  In  Rhode  Island,  voters  were  re- 
quired to  own  freeholds  worth  $120,  or  their  eldest  sons  must  be  pos- 
sessed of  an  estate  worth  that  amount.  In  the  other  States,  property, 
real  or  personal,  worth  from  $30  to  $200,  was  sufficient  to  qualify  a 
voter. 

The  Revolution  of  1776  brought  about  an  extension  of  the  electoral 
franchise.    The  last  survival  of  a  religious  test  appears  in  the  Consti- 


CHAP.  I.]  EIGHT   TO   VOTE.  6 

in  Illinois,  Indiana  and  Minnesota  unnaturalized  foreigners 
were  admitted,' 

In  no  State  have  all  citizens  ever  been  permitted  to  vote, 
there  having  always  been  a  requirement,  at  least,  as  to  age.'' 

§  4r.  The  right  to  vote  is  not  a  natural  right,  such  as  the 
right  to  personal  security,  personal  liberty,  and  the  right  to 
acquire  and  enjoy  property.  It  is  not  such  a  right  as  be-^ 
longs  to  a  man  in  a  state  of  nature,  and  even  in  the  organized 
government  he  receives  it  as  a  conferred  franchise.  In  the 
United  States  the  people  are  the  source  of  all  political  | 
power,  and  it  is  within  their  power  to  give,  refuse  or  re- 
strict the  elective  franchise.    And  when  conferred,  it  is  not 

tution  of  South  Carolina  (Article  XIII),  in  force  from  1778  to  1790,  limit- 
ing suffrage  "  to  every  free  white  man  who  acknowledges  the  being  of 
a  God,  and  believes  in  a  future  state  of  rewards  and  punishmenta" 
When  the  Federal  Constitution  was  adopted,  each  State  was  left  to 
prescribe  its  own  qualifications  for  voters.  Since  1789,  freehold  suffrage 
has  given  away  to  manhood  suffrage.  Eleven  of  the  thirteen  original 
States  have  abolished  the  tax  and  property  tests,  as  follows:  New  Hamp- 
shire, Maryland,  Massachusetts,  New  York,  Delaware,  New  Jersey,  Con- 
necticut, South  Carolina,  North  Carolina  and  Virginia. 

The  only  new  States  that  have  required  a  property  or  tax  qualification 
are  Tennessee,  admitted  in  1796,  with  freehold  qualifications,  abolished 
in  1834;  Ohio,  admitted  with  tax  qualification  in  1802,  abolished  in 
1857;  Louisiana,  admitted  in  1812,  with  tax  qualification,  abolished  in 
1845;  and  Mississippi,  admitted  in  1817,  with  a  tax  qualification,  abol- 
ished in  1832. 

For  further  historical  information,  and  for  a  philosophical  treatment 
of  the  subject,  see  the  following  authorities: 

Lalor's  Cyc.  of  Political  Science,  p.  822  et  seq, 

Frothingham's  Rise  of  the  Republic,  p.  25. 

Cook's  Virginia,  p.  222. 

Hildreth's  History  of  the  United  States,  voL  3,  p.  881. 

De  Tocqueville  in  America,  vol.  1,  ch.  5. 

Mills'  Representative  Government,  ch.  7. 

Lieber's  Civil  Liberty,  ch.  16. 

Woolsey's  Political  Science,  voL  1,  p.  299;  vol  2,  p.  111. 

Cooley's  Constitutional  Limitations,  ch.  17. 

Bancroft's  History  of  the  United  States,  vol.  1,  p.  537;  vol.  2,  p.  7. 

1  Van  Valkenburg  v.  Brown,  supra;  Minor  v.  Happersett,  supra. 

2  "  The  right  to  vote  is  not  conferred  by  the  mere  act  of  naturalizs> 
tion."    Spragins  v.  Houghton,  3  IlL,  377. 


6  ELECTIONS.  [chap,  I. 

a  vested  right,  but  may  be  taken  away  by  the  power  that 
gave  it.^  In  Blair  v.  Ridgely^  it  is  said  by  the  court  that 
,"  the  right  to  vote  is  not  vested,  it  is  purely  conventional, 
and  may  be  enlarged  or  restricted,  granted  or  withheld,  at 
pleasure,  and  without  fault."  The  only  rights  connected 
with  the  exercise  of  suffrage  are  the  right  of  the  Common- 
wealth or  aggregate, body  of  the  governed  to  determine  who 
the  electors  shall  be,  and  the  right  of  every  citizen  to  be 
rightly  and  fairly  represented  by  electors.'  Some  author- 
ities may  be  found  in  which  the  right  of  suffrage  is  referred 
to  as  a  vested  right,*  but  in  these  cases  the  word  "  vested  " 
is  used  as  meaning  incapable  of  being  taken  away,  except 
by  the  power  which  gave  it.  No  exception  can  be  taken  to 
the  use  of  the  word  in  this  sense,  but  certainly  no  authority 
can  be  found  in  this  country  for  the  proposition  that  the 
right  to  vote  is  vested^  in  the  sense  that  any  proprietary  or 
permanent  right  attaches  to  it.*^ 

§  5.  In  Anderson  v.  Baker ^  it  is  said :  "  The  right  of  suf- 
frage is  not  an  original,  indefeasible  right,  even  in  the  most 
free  of  republican  governments ;  but  every  civilized  society 
has  uniformly  fixed,  modified  and  regulated  it  for  itself,  ac- 
cording to  its  own  free  will  and  pleasure,  and  in  these  United 
States  every  constitution  of  government  has  assumed,  as 
a  fundamental  principle,  the  right  of  the  people  of  a  State 
to  alter,  abolish  and  modify  the  form  of  its  own  govern- 

1  Blair  v.  Ridgely,  41  Mo.,  161  and  175;  Luther  v.  Borden,  17  U.  S.,  15; 
Webster's  argument  in  Luther  v.  Borden,  Webster's  Works,  voL  6,  p.  221 ; 
State  V.  Dillon,  23  Fla.,  545;  Spencer  v.  Board  of  Registration,  1  Mac- 
Arthur,  169,  29  Am.  Rep.,  582;  Desty's  'fe'ed.  Const,  283,  note  21;  Ander- 
son V.  Baker,  23  Md.,  531.  ^ 

2  41  Mo.,  178. 

'  Jamison  on  Const.  Conventions,  sec  337. 

<  White  V.  County  Commissioners  of  Multnomah  Co.,  13  Oreg.,  317; 
Rich  V.  Flanders,  89  N.  a,  385;  Eakin  v.  Raub,  12  Serg.  &  R,,  485. 

6  It  cannot  in  a  confined  sense  be  called  property.  It  is  not  assets  to 
pay  debts,  nor  does  it  descend  to  the  heir  or  administrator.  Brown  v. 
Hummell,  6  Pa.  St,  86;  White  v.  County  Commissioners  of  Multnomah 
Co.,  supra. 

6  23  Md.,  596. 


CHAP.  I.]  EIGHT   TO   VOTE.  7 

ment,  according  to  the  sovereign  pleasure  of  the  people.  The 
right  to  vote,  like  the  right  to  hold  oflBce,  being  thus  con- 
ferred upon  the  voter  by  the  sovereign  will  of  the  people,  in 
their  organic  law  or  constitution  of  government,  the  ques- 
tion, upon  whom  it  ought  to  be  conferred,  and  what  should 
constitute  its  boundaries  and  limits  —  in  other  words,  what 
should  qualify  and  what  should  disqualify — is  one  which  the 
people  themselves  are  to  settle." 

§  6.  In  Blair  v.  Ridgely^  the  question  at  issue  arose  out 
of  the  provision  of  Article  II,  Section  3,  of  the  Constitution 
of  1866  of  the  State  of  Missouri.  By  this  section  it  was  pro- 
vided that  no  person  should  be  deemed  a  qualified  voter  who 
had  ever  been  in  armed  hostility  to  the  United  States,  or  to 
the  government  oT  the  State  of  Missouri ;  that  every  per- 
son should,  at  the  time  of  offering  to  vote,  take  an  oath  that 
he  was  not  within  the  inhibition  of  this  section,  and  that  any 
person  declining  to  take  such  oath  should  not  be  allowed  to 
vote.  The  plaintiff,  at  an  election  held  in  the  city  of  St.  Louis 
on  November  7, 1865,  offered  to  vote,  but  refused  to  take  the 
oath  prescribed  by  the  Constitution.  His  vote  being  rejected, 
he  brought  his  action  against  the  judges  of  the  election  for 
damages.  The  case  was  taken  to  the  Supreme  Court  of  Mis- 
souri, where  it  was  argued  exhaustively,  and  with  much 
learning,  by  eminent  counsel,  and  the  argument  is  to  be  found 
in  full  in  the  reports  of  the  Supreme  Court  of  Missouri,  vol- 
ume 41.  It  was  contended  by  the  plaintiff  that  the  section 
of  the  Constitution  in  question  was  in  violation  of  the  Con- 
stitution of  the  United  States,  being  a  biU  of  attainder  and 
an  ex  post  facto  law  within  the  meaning  of  that  instrument, 
and,  in  consequence,  null  and  void.  But  the  Court  held 
against  this  contention,  drawing  the  distinction  between 
laws  passed  to  punish  for  offenses  in  order  to  prevent  their 
repetition,  and  laws  passed  to  protect  the  public  franchises 
and  privileges  from  abuse  by  falling  into  unworthy  hands. 
It  is  said  by  the  Court  that  "  the  State  may  not  pass  laws  in 

141  Mo.,  161. 


8  ELECTIONS.  [OHAP.  I. 

the  form  or  with  the  effect  of  bills  of  attainder,  ex  post  facto 
laws,  or  laws  impairing  the  obligation  of  contracts.  It  may 
and  has  full  power  to  pass  laws,  restrictive  and  exclusive,  for 
the  preservation  or  promotion  of  the  common  interest  as 
political  or  social  emergencies  may  from  time  to  time  re- 
quire, though  in  certain  instances  disabilities  may  directly 
flow  in  consequence.  It  should  never  be  forgotten  that  the 
State  is  organized  for  the  public  weal  as  well  as  for  indi- 
vidual purposes;  and  while  it  may  not  disregard  the  safe- 
guards that  are  thrown  around  the  citizen  for  his  protection 
by  the  Constitution,  it  cannot  neglect  to  perform  and  do  what 
is  for  the  public  good." 

§  Y.  It  was  argued  in  Blair  v.  Eidgely  that  the  decision 
of  the  Supreme  Court  of  the  United  States  in  Cummings  v. 
Missouri^  where  it  was  held  that  this  section  of  the  Mis- 
souri Constitution,  so  far  as  it  provided  an  oath  to  be  taken 
by  preachers,  was  in  the  nature  of  pains  and  penalties,  and 
consequently  void,  was  decisive  of  the  Blair  case.  But  the 
distinction  between  the  right  to  practice  a  profession  or  fol- 
low a  calling,  and  the  right  to  vote,  is  clearly  stated  in  the 
opinion  of  Judge  Wagner,  as  foUows :  "  The  decision  of  the 
Supreme  Court  of  the  United  States  in  the  Cummings  case 
proceeds  on  the  idea  that  the  right  to  pursue  a  calling  or 
profession  is  a  natural  and  inalienable  right,  and  that  a  law 
precluding  a  person  from  practicing  his  calling  or  profession 
on  account  of  past  conduct  is  inflicting  a  penalty,  and  there- 
fore void.  There  are  certain  rights  which  inhere  in  and 
attach  to  the  person,  and  of  which  he  cannot  be  deprived, 
except  by  forfeiture  for  crime,  whereof  he  must  be  first  tried 
and  convicted,  according  to  due  process  of  law.  These  are 
termed  natural  or  absolute  rights.  *  *  *  But  is  the  right 
to  vote  or  to  exercise  the  privilege  of  the  elective  franchise 
a  right  either  natural,  absolute  or  vested  ?  It  is  certain  that 
in  a  state  of  nature,  disconnected  with  government,  no  per- 
son has  or  can  enjoy  it.    That  the  privilege  of  participating 

14  Wall,  277. 


CHAP.  I.]  EIGHT  TO  VOTE.  9 

in  the  elective  franchise  in  this  free  and  enlightened  country- 
is  an  important  and  interesting  one  is  most  true.  But  we 
are  not  aware  that  it  has  ever  been  held  or  adjudged  to  be 
a  vested  interest  in  any  individual." 

§  8.  Suffrage  in  the  United  States  not  being  a  vested 
right,  it  results  that  persons  who  have  enjoyed  and  exercised 
the  privilege,  and  who  have  been  qualified  electors,  may  be 
entirely"  disfranchised  and  deprived  of  the  privilege  by  con- 
stitutional provision,  and  such  persons  are  entirely  without 
a  remedy  at  law.^ 

§  9.  It  is  important  in  this  connection  to  distinguish  the 
American  theory  of  the  elective  franchise  from  that  which 
prevails  in  England.  In  the  latter  country  the  right  to  vote 
is  a  vested  right  attached  to  and  inseparable  from  an  estate 
of  freehold.  It  is  held  from  the  King  as  an  incident  of  the 
freehold,  and  the  right  can  no  more  be  taken  away  than  the 
freehold  itself.  The  origin  and  character  of  the  right  is 
best  stated  in  the  opinion  of  Chief  Justice  Holt,  in  Ashhy  v. 
White  et  al?  The  plaintiff  in  that  case,  being  a  "  burgess  " 
and  an  inhabitant  of  the  borough  of  Aylesbury,  was  refused 
permission  to  vote  by  the  constables  of  the  borough,  where- 
upon he  brought  his  suit  to  recover  damages.  Justices 
Powell,  Powys  and  Gould  held  that  the  action  could  not  be 
maintained,  but  Holt,  C.  J.,  dissented  and  gave  an  opinion 
for  the  plaintiff.  An  appeal  was  prosecuted  to  the  House 
of  Lords,  where  the  judgment  of  the  King's  Bench  was  re- 
versed and  Justice  Holt's  views  sustained  and  adopted. 

The  Chief  Justice,  maintaining  the  right  of  the  plaintiff  to 
vote,  shows  that  the  Commons  of  England  have  a  right  to 
participate  in  the  government,  which  right  is  exercised  by 
representatives  chosen  by  themselves;  that  this  representa- 
tion is  exercised  either  in  the  quality  of  knights  of  shires, 
citizens  of  cities,  or  burgesses  of  boroughs.     The  origin  and 

^  "  Every  man  has  a  right  to  be  governed  justly,  but  it  does  not  fol- 
low that  every  man  has  a  right  to  be  a  governor."  Alden's  Science  of 
Government,  p.  19. 

2  2  Ld.  Raymond,  938  (1  Smith's  Leading  Cases,  p.  472). 


10  ELECTIONS.  [chap.  I. 

character  of  suffrage  in  England  is  then  stated  as  follows: 
"  The  election  of  knights  belongs  to  the  freeholders  of  the 
counties,  and  it  is  an  original  right  vested  in  and  inseparable 
from  the  freehold,  and  can  no  more  be  severed  from  the 
freehold  than  the  freehold  itself  can  be  taken  away.  Before 
the  statute  of  8  Hen.  6,  ch.  7,  auy  man  that  had  a  freehold, 
though  never  so  small,  had  a  right  of  voting;  but  by  that 
statute  the  right  of  election  is  confined  to  such  persons  as 
have  lands  or  tenements  to  the  yearly  value  of  forty  shill- 
ings at  least,  because,  as  the  statute  says,  of  the  tumults  and 
disorders  which  happened  at  elections  by  the  excessive  and 
outrageous  number  of  electors ;  but  still  the  right  of  election 
is  an  original  right  incident  to  and  inseparable  from  the  free- 
hold. As  for  citizens  and  burgesses,  they  depend  on  the 
same  right  as  the  knights  of  shires  and  differ  only  as  to  the 
tenure ;  but  the  right  and  manner  of  their  election  is  on  the 
same  foundation.  Now,  boroughs  are  of  two  sorts:  first, 
where  the  electors  give  their  voices  by  reason  of  their  bur- 
gership ;  or,  secondly,  by  reason  of  their  being  members  of 
the  corporation.  Littleton,  in  his  chapter  of  Tenure  in  Bur- 
gage, 162  C.  L.,  108  b,  109,  says:  'Tenure  in  burgage  is 
where  an  ancient  borough  is,  of  which  the  king  is  lord,  of 
whom  the  tenants  hold  by  certain  rent,  and  it  is  but  a  ten- 
ure in  socage;'  and  in  section  164:  he  says,  'and  it  is  to  wit 
that  the  ancient  towns  called  boroughs  be  the  most  ancient 
towns  that  be  within  England,  and  are  called  boroughs  be- 
cause of  them  come  the  burgesses  to  parliament.'  So  that 
the  tenure  of  burgage  is  from  the  antiquity,  and  their  tenure 
in  socage  is  the  reason  of  their  estate,  and  the  right  of  elec- 
tion is  annexed  to  their  estate." 

§  10.  It  will  be  seen  from  the  foregoing  that  while  the 
right  to  vote  in  England  is  a  political  privilege  granted  by 
the  King,  in  the  American  States  it  depends  upon  the  will 
of  the  people  themselves.  This  distinction  is  directly  trace- 
able to  the  difference  between  the  English  idea  of  an  orig- 
inal compact  or  agreement,  by  which  the  people  consented 
to  surrender  to  the  King  all  political  sovereignty,  he  in 


CHAP.  I.]  EIGHT   TO   VOTE.  11 

turn  granting  suffrage  to  the  freeholders  as  a  vested  right, 
and  the  American  theory  that  all  sovereignty  resides  in  the 
people  and  is  only  delegated  by  them.  The  Constitution 
of  the  United  States  and  of  the  several  States  rests  upon  the 
principle  of  a  representation  by  the  people,  and  upon  the 
further  principle  that  no  power  is  exercised  of  personal  right 
but  by  delegation.^ 

§  11.     Granting  that  the  sovereignty  in  this  country,  viz., 
the  supreme  power  —  the  right  to  make  or  change  the  form 
of  government — resides  in  the  people,  the  question,  "  Who/ 
are  the  people?"  becomes  of  importance,  and  its  solution,  in\ 
the  light  of  opinions  of  the  courts,  is  not  free  from  difficulty^ 
An  examination  of  the  cases  bearing  upon  the  question  will 
show,  however,  that  what  appears  to  be  a  difference  of  opin- 
ion is  really  a  disagreement  caused  by  a  consideration  of  the 
question  from  different  standpoints ;  those  cases  in  which 
the  question  has  been  considered  theoretically  leading  to  the 
conclusion  that  the  sovereignty  resides  in  the  entire  com- 
munity, irrespective  of  age  or  sex,  while  a  portion  of  the 
cases,  which  have  considered  the  question  from  a  practical 
point  of  view,  have  reached  the  conclusion  that  the  sov- 
ereignty is  in  the  voters. 

In  the  present  consideration  of  the  question,  it  is  proposed 
to  determine  first  who  were  regarded  as  the  people  at  the 
time  of  the  founding  of  the  government.  The  answer  to 
this  inquiry  is  to  be  found  in  the  preambles  to  constitutions, 
the  opinions  of  the  founders  of  the  government  as  expressed 
in  their  writings  and  public  addresses,  and  in  the  opinions 
of  the  courts. 

§  12.  So  long  as  the  American  colonies  remained  subject 
to  Great  Britain,  there  were,  in  a  constitutional  sense,  no 
people.  Parliament  being  the  body  politic.  But  when  the 
colonies  renounced  allegiance  to  George  III.,  every  citizen 
of  the  colonies  became  equal  with  every  other  citizen,  civilly 
and  politically.     The  Declaration  of  Independence  declared 

12  Wilson's  Works,  note  A,  Appendix;  1  Sharswood's  Blackstone,  49, 
note  13k 


12  ELECTIONS.  [chap.  L 

that  all  men  are  created  equal ;  that  governments  derive 
their  just  powers  from  the  consent  of  the  governed;  and  that 
when  any  form  of  government  becomes  destructive  of  the 
proper  ends  of  government,  that  it  is  the  right  of  the  people 
to  alter  or  abolish  it.  The  framers  of  the  Declaration  of 
Independence  declared  that  the  legislative  power,  incapable 
of  annihilation,  had  returned  to  the  people  at  large  for  their 
exercise.  The  preamble  to  the  Constitution  of  the  United 
States  announces  peremptorily  and  with  authority  that 
"  We,  the  people  of  the  United  States,  do  ordain  and  estab- 
lish this  Constitution." 

The  Constitution  of  the  State  of  New  York,  adopted  in 
1777,  contained  this  clause :  "  This  convention,  therefore,  in 
the  name  of  and  by  the  authority  of  the  good  people  of  this 
State,  doth  ordain,  determine  and  declare  that  no  authority 
shall,  on  any  pretense  whatever,  be  exercised  over  the  peo- 
ple or  members  of  this  State  but  such  as  shall  be  derived 
from  and  granted  by  them."  The  preamble  of  the  Consti- 
tution of  Massachusetts  contains  this  declaration :  "  The 
body  politic  is  formed  by  voluntary  association  of  individ- 
uals. It  is  a  social  compact  by  which  the  whole  people 
covenants  with  each  citizen,  and  each  citizen  with  the  peo- 
ple, that  all  shall  be  governed  by  certain  laws  for  the  public 
good."  Similar  declarations  are  found  in  the  Constitution  of 
Maryland,  of  1776 ;  in  that  of  Delaware,  of  1792 ;  in  that  of 
New  Hampshire,  of  1784;  in  that  of  North  Carolina,  of  1776, 
and  in  that  of  Yermont,  of  1777.  The  Constitution  of  Con- 
necticut, of  1818,  provides,  "  That  all  men,  when  they  form 
a  social  compact,  are  equal  in  rights ;  that  all  political  power 
is  inherent  in  the  people,  and  all  free  governments  are 
founded  on  their  authority;  that  they  have  at  all  times  an 
undeniable  and  indefeasible  right  to  alter  their  form  of  gov- 
ernment in  such  manner  as  they  may  think  expedient." 

§  13.  The  speeches  and  writings  of  the  founders  of  the 
government  are  pregnant  with  the  idea  that  the  sovereignty 
was  at  the  beginning  in  the  entire  people.  Daniel  Webster, 
in  his  argument  in  Luther  v.  Borden^  said  that  the  only 


CHAP.  I.]  BIGHT   TO   VOTE.  13 

source  of  political  power  is  the  people,  and  that  the  peo- 
ple are  sovereign.^  Mr.  Hallett,  in  his  argument  in  the 
same  case,  said :  "  All  the  American  writers  use  the  term 
'  people '  to  express  the  entire  numerical  aggregate  of  the 

1  In  Daniel  Webster's  celebrated  argument  in  Luther  v.  Borden,  supra, 
growing  out  of  the  Dorr  rebellion,  is  found  a  clear  and  concise  state- 
ment of  the  political  system  of  the  American  Statea  An  analysis  of 
the  statement  is  as  follows:  The  only  source  of  political  power  is  the 
people.  The  people  (viz.,  the  entire  community)  are  sovereign,  but 
this  is  not  the  sovereignty  which  acts  in  the  daily  exercise  of  sovereign 
power.  The  exercise  of  legislative  power,  and  the  other  powers  of  gov- 
ernment, directly  by  the  people,  is  impracticable.  They  must  be  exer. 
cised  by  the  representatives  of  the  people;  and  this  sovereign  power 
having  been  delegated  and  placed  in  the  hands  of  the  government,  that 
government  becomes  what  is  popularly  called  the  State.  The  basis  of 
this  representation  is  suffrage.  The  right  to  choose  representatives  is 
every  man's  part  in  the  exercise  of  sovereign  power.  To  have  a  voice 
in  it,  if  he  has  the  proper  qualifications,  is  the  portion  of  political 
power  belonging  to  every  elector.  This  is  the  beginning.  That  is  the 
mode  in  which  power  emanates  from  its  source  and  gets  into  the 
hands  of  conventions,  legislatures,  courts  and  executive  officers.  It 
begins  in  suffrage.  Suffrage  is  the  delegation  of  the  power  of  an  indi- 
vidual to  some  agent.  This  being  so,  then  follow  two  other  great 
principles  of  the  American^ystem :  First,  the  right  of  suffrage  must  be 
guarded,  protected  and  secured  against  force  and  against  fraud;  and 
second,  its  exercise  must  be  prescribed  by  previous  law.  That  every 
man  entitled  to  vote  may  vote,  and  that  his  vote  may  be  sent  forward 
and  counted,  and  so  he  may  exercise  his  part  in  sovereignty  in  com- 
mon with  his  fellow-citizens. 

There  is  another  principle,  equally  true,  that  the  people  often  limit 
themselves  and  set  bounds  on  their  own  power  to  secure  the  institu- 
tions which  they  have  established  against  the  sudden  impulses  of  mere 
majorities.  They  also  limit  themselves  in  regard  to  the  qualifications 
of  electors,  and  in  regard  to  the  qualifications  of  the  elected.  In  every 
State  the  people  have  precluded  themselves  from  voting  for  every  one 
they  might  choose  to  vote  for,  and  have  limited  their  own  right  of 
choosing.    Webster's  Works,  vol.  6,  pp.  231-227. 

It  will  be  noticed  that  Mr.  Webster  here  refers  to  the  government 
as  being  the  State.  It  is  not  to  be  presumed,  however,  that  he  intended 
this  in  other  than  a  narrow  sense  suited  to  the  purposes  of  the  argu- 
ment he  was  at  the  time  making.  The  case  involved  the  question 
which  of  two  factions  constituted  the  constitutional  government  of  the 
State  of  Rhode  Island.  Webster  was  maintaining  the  authority  of  the 
charter  government,  which  it  was  claimed  had  been  regularly  established 


14  ELECTIONS.  [chap.  I. 

commuDity,  whether  State  or  Kational,  in  contradistinction 
to  the  Government  or  Legislature;  that  in  the  people,  as 
thus  defined,  resides  the  ultimate  power  of  sovereignty." ' 
James  Winthrop,  in  his  letter  to  the  Massachusetts  conven- 
tion, February  5,  1788,  said ;  "  In  the  original  state  of  gov- 

by  the  people  and  to  which  the  people  had  delegated  the  powers  of  gov- 
ernment. Such  a  government,  rather  than  any  other,  was  the  State,  or, 
more  accurately  speaking,  the  duly  accredited  and  authorized  repre- 
sentative of  the  State.  In  addition  to  the  idea  of  the  State  as  synony- 
mous with  the  government,  the  word  has  sometimes  been  used  as  de- 
noting a  territorial  region,  as  where  the  Federal  Constitution  requires 
that  a  Representative  in  Congress  shall  be  an  inhabitant  of  the  State  in 
which  he  shall  be  chosen.  In  other  parts  of  the  Constitution  the  word 
"  State  "  contains  the  combined  idea  of  people,  territory  and  govern- 
ment. Texas  v.  White,  7  Wall,  721.  But  in  a  primary  sense  the  State 
is  the  civil  community  independent  of  the  civil  government.  1  Wil- 
son's Works,  271;  Texas  v.  White,  supra.  The  government  is  estab- 
lished by  the  State  as  a  mere  agency  for  the  exercise  of  those  powers 
that  reside  in  the  people.  So  that  the  authority  of  the  State  is  original 
or  inherent,  while  the  authority  of  the  government  is  delegated.  Shars- 
wood's  Blackstone,  p.  49,  note  12.  A  State  is  not  the  legislature  of  a 
State,  nor  the  executive,  nor  the  judiciary,  but  it  is  the  people  them- 
selves altogether  forming  a  body  politic.  Pen  hallow  n  Doane's  Admin- 
istrators, 3  Dall.,  93;  State  v.  Young,  29  Minn.,  536.  Cicero  defined  a 
State  to  be  a  body  political  or  society  of  men  united  together  for  the 
purpose  of  promoting  their  mutual  safety  and  advantage  by  their  com 
bined  strength-  Such  a  body  or  society  when  once  organized  as  a  State 
is  not  destroyed  by  any  change  or  modification  of  its  system  of  govern- 
ment, but  has  a  wholly  separate  and  independent  existence.  Keith  v. 
Clark,  97  U.  S.,  454;  1  Wilson's  Works,  271.  So  it  has  been  held  that 
the  obligation  of  contracts  and  treaties  of  a  State  are  in  nowise  im- 
paired by  a  change  in  the  State's  form  of  government,  so  long  as  the 
body  politic  remains  the  same.  Keith  v.  Clark,  supra;  Texas  v.  White, 
supra;  White  v.  Hart,  13  Wall.,  646.  Where  the  ownership  of  a  terri- 
tory is  transferred  from  one  nation  to  another,  the  relations  of  the  in- 
habitants of  such  territory  with  each  other  remain  unchanged;  and 
while  there  is  a  transfer  of  allegiance  from  one  government  to  another 
and  a  consequent  change  in  the  political  law  of  the  territory,  still  that 
law  which  regulates  the  intercourse  and  general  conduct  of  individ- 
uals remains  in  force  until  altered  by  the  new  authority.  American 
Ins.  Col  v.  Canter,  1  Pet.,  540.  See,  also,  Wilson's  Works,  Appendix, 
note  A. 
1  Luther  v.  Borden,  7  How.  (U.  S.),  19-27. 


CHAP.  I.]  EIGHT   TO   VOTE.  16 

ernment  the  whole  power  resides  in  the  whole  body  of  the 
Nation,  and,  when  a  people  appoints  certain  persons  to  gov- 
ern them,  they  delegate  their  whole  power."  ^ 

It  was  said  by  Elbridge  Gerry  that  "  ThQ  origin  of  all 
power  is  in  the  people,  and  they  have  an  incontestable  right 
to  check  the  creatures  of  their  own  creation."  ^ 

Similar  expressions  are  to  be  found  in  the  writings  and 
addresses  of  many  other  statesmen  of  the  Revolutionary 
period.' 

§  14.  It  must  be  apparent  from  the  foregoing  that  the 
people  who  declared  their  independence,  and  who  adopted 
constitutions,  were  the  individuals  who  made  up  the  citizen- 
ship of  the  new  States,  irrespective  of  age  or  sex.  These 
were  "  the  governed,"  from  whom  the  government  derived 
its  powers.  These  were  "the  people  or  members  of  the 
State."  It  would  seem,  therefore,  that  the  people  of  the 
Constitution  were  the  citizens  of  the  State,  male  and  female, 
old  and  young.  This  is  made  even  more  certain  by  the 
early  decisions  of  the  Supreme  Court  of  the  United  States 
in  cases  where  the  question  has  been  considered. 

§  15.  In  the  great  case  of  Chisholm,  Executor^  v.  The 
State  of  Georgia^  decided  in  1793,  Justice  Wilson,  one  of 
the  chief  architects  of  our  system  of  government,  said :  "  The 
well-known  address  of  Demosthenes,  when  he  harangued 
and  animated  his  assembled  countrymen,  was :  '  O,  men 
of  Athens ! '  With  the  strictest  propriety,  therefore,  clas- 
sical and  political,  our  national  scene  opens  with  the  most 
magnificent  object  which  the  Kation  could  present.  '  The 
people  of  the  United  States '  are  the  first  personages  intro- 
duced. Who  were  those  people?  They  were  the  citizens  of 
the  thirteen  States." 

1  Federalist  (Fed.  Statesmen  Series),  p.  553. 

*  Federalist  (Fed.  Statesmen  Series),  p.  717. 

3  John  Quincy  Adams'  Eulogy  on  Monroe,  Lives  of  Madison  and  Mon- 
roe, p.  236.  See,  also,  Mr.  Porter  in  N.  Y.  Convention  (Deb.  N.  Y.  Con., 
1846,  pp.  249-50);  Storey's  Com.  on  Const.,  sec.  215. 

«2Dall.,  46a 


16  ELECTIONS.  [chap.  I. 

In  the  opinion  of  Chief  Justice  Jay  in  the  same  case  is  to 
be  found  the  following  language :  "  It  is  remarkable  that 
in  establishing  it  [the  Constitution]  the  people  exercised 
their  own  rights  and  their  own  proper  sovereignty,  and, 
conscious  of  the  plenitude  of  it,  they  declared  with  becom- 
ing dignity,  *"We,  the  people  of  the  United  States,  do  ordain 
and  establish  this  Constitution.'  Here  we  see  the  people 
acting  as  sovereigns  of  the  whole  country,  and  in  the  lan- 
guage of  sovereignty  establishing  a  constitution.  *  *  * 
At  the  Revolution  the  sovereignty  devolved  on  the  people ; 
and  they  are  truly  the  sovereigns  of  the  country ;  but  they 
are  sovereigns  without  subjects,  unless  the  African  slaves 
among  us  may  be  so  called,  and  have  none  to  govern  but 
themselves ;  the  citizens  of  America  are  equal  as  fellow-citi- 
zens, and  as  joint-tenants  in  the  sovereignty." 

§  16.  Again,  in  1795,  in  the  case  of  Penhallow  v.  Boane's 
Admiaiistrators^  it  is  said  by  Justice  Iredell :  "  A  distinc- 
tion was  taken  at  the  bar  between  a  State  and  the  people 
of  the  State.  It  is  a  distinction  I  am  not  capable  of  com- 
prehending. By  a  State  forming  a  republic,  speaking  of  it 
as  a  moral  person,  I  do  not  mean  the  legislature  of  the 
State,  the  executive  of  the  State,  or  the  judiciary,  but  all 
the  citizens  which  compose  that  State,  and  are,  if  I  may  so 
express  myself,  integral  parts  of  it ;  all  together  forming  a 
body  politic.  The  great  distinction  between  monarchies  and 
republics,  at  least  our  republics,  in  general  is,  that  in  the 
former  the  monarch  is  considered  as  the  sovereign,  and  each 
individual  of  his  nation  as  subject  to  him,  though  in  some 
countries  with  many  important  special  limitations ;  this,  I 
say,  is  generally  the  case,  for  it  has  not  been  so  universally. 
But  in  a  republic,  all  the  citizens,  as  such,  are  equal,  and  no 
citizen  can  rightfully  exercise  any  authority  over  another 
but  in  virtue  of  a  power  constitutionally  given  by  the  whole 
community,  and  such  authority  when  exercised  is,  in  effect, 
an  act  of  the  whole  community  which  forms  such  body  pol- 

i3DalL,93. 


CHAP.  I.]  EIGHT    TO   VOTE.  17 

itic.  In  such  governments,  therefore,  the  sovereignty  re- 
sides in  the  great  body  of  the  people ;  but  it  resides  in  them 
not  as  so  many  distinct  individuals,  but  in  their  politic  ca- 
pacit}^  only." 

§  17.  In  Dred  Scott  v.  Sanford^  decided  in  1856,  Judge 
Taney,  in  delivering  the  opinion  of  the  Court,  said :  "  The 
words  '  people  of  the  United  States '  and  '  citizens '  are  syn- 
onymous terms,  and  mean  the  same  thing.  They  both  de- 
scribe the  political  body  who,  according  to  our  republican 
institutions,  form  the  sovereignty,  and  who  hold  the  power 
and  conduct  the  government  through  their  representatives. 
They  are  what  we  familiarly  call  the  'sovereign  people,' 
and  every  citizen  is  one  of  these  people,  and  a  constituent 
member  of  this  sovereignty." 

§  18.  In  the  light  of  the  foregoing  it  may  be  said  with 
certainty  that  at  the  time  of  the  Declaration  of  Independ- 
ence and  of  the  formation  of  the  Union  the  people  were 
the  citizens,  irrespective  of  age  or  sex,  and  that  the  sov- 
ereignty in  this  country  inhered  originally  in  this  broad 
class.  It  is  next  important  to  determine  whether  the  sov- 
ereignty has  been  delegated  or  surrendered  by  the  original 
people,  and  if  so  how,  and  to  what  extent,  and  to  ascertain 
who  are,  in  a  political  sense,  the  sovereign  people  in  this 
country  to-day. 

§  19.  It  being  wholly  impossible  for  the  entire  body  of 
the  people  to  participate  in  the  exercise  of  sovereignty, 
they  have  constituted  different  agencies  to  represent  and 
act  for  them  in  maintaining  the  government,  the  chief  of 
which  is  the  electoral  body,  or  the  voters,  who  act  as  the 
immediate  representatives  of  the  people  in  the  daily  affairs 
of  government,  and  who  choose  from  among  themselves 
those  who  are  to  till  those  other  agencies  of  the  people,  the 
legislative,  executive  and  judicial  departments  of  the  gov- 
ernment.^   The  body  of  the  people  never  has  and  never 

1 19  How.,  373. 

2  Jamison  on  Constitutional  Conventions,  §  24 
2 


18  ELECTIONS.  [chap.  I, 

can  assemble.  True,  the  constitutional  convention  is  popu- 
larly regarded  as  an  assembly  of  the  people,  and  its  pro- 
ceedings are  considered  as  the  utterances  of  the  people,  di- 
rect from  the  lips  of  sovereignty.  Yet,  in  fact,  a  limited 
number  of  individuals  either  assume  or  are  delegated  to 
represent  the  people  in  such  conventions,  and  a  large  ma- 
jority of  the  people  never  participate  therein.^  How  then 
do  the  constitutions  adopted  by  such  conventions  become 
binding  upon  the  people.  This  question  may  be  properly 
considered  here,  in  so  far  as  it  aids  in  a  determination  of 
the  character  of  the  right  of  suffrage  as  fixed  by  constitu- 
tional provision. 

§  20.  It  is  upon  the  theory  of  affirmance  or  ratification 
of  acts  done  in  the  name  of  the  people  that  the  provisions 
of  constitutions,  including  the  provisions  prescribing  the 
qualifications  of  voters,  become  binding  upon  the  body  pol- 
itic. The  Declaration  of  Independence  and  the  Constitution 
of  the  United  States,  and  of  the  respective  States,  pur- 
port to  be  the  acts  of  the  whole  people,  done  in  their  name, 
by  their  agents  or  representatives.  The  individual,  there- 
fore, who  continues  to  live  without  objection  under  the  pro- 
visions of  or  changes  in  a  constitution,  niade  by  one  claiming 
to  act  for  him  and  in  his  name,  is  deemed  as  ratifying  such 
provisions  or  changes,  and  as  subscribing  thereto,  and  by 
such  ratification  it  becomes  his  as  fully  as  though  he  had 
actually  voted  for  its  adoption.  It  was  by  the  enforcement 
of  this  theory  that  the  Constitution  of  the  United  States  first 
became  binding  upon  the  inhabitants  of  the  new  States. 
All  persons,  whether  natives  or  mere  inhabitants,  were  con- 
sidered entitled  to  make  their  choice  either  to  remain  and 
become  citizens  of  one  or  other  of  the  States,  or  to  remove 
from  the  country  and  continue  British  subjects.  By  remain- 
ing a  certain  length  of  time,  fixed  in  some  cases  by  statute, 
they  were  presumed  to  have  elected  to  become  American 

11  Sharswood's  Blackstone,  47,  note  11;  Blair  v.  Ridgely,  41  Mo.,  161; 
Wilson's  Works,  voL  1,  p.  14,  and  voL  2,  Appendix,  p.  570;  Jamison  on 
Const  Con.,  sec.  237. 


CHAP.  I.]  EIGHT   TO   VOTE.  19 

citizens.^  Thus,  tlie  Constitution,  which  before  its  adoption 
was  a  mere  proposition,  promulgated  by  a  convention,  be- 
came the  instrument  of  the  people,  either  by  virtue  of  their 
votes,  or  by  their  acquiescence.- 

§  21.  In  the  case  of  Inglis  v.  Trustees  of  Sailor's  Snug 
Harbor^  it  was  said  by  Justice  Story :  "  Under  the  peculiar 
circumstances  of  the  Revolution,  the  general,  I  do  not  say 
the  universal,  principle  adopted,  was  to  consider  all  persons, 
whether  natives  or  inhabitants,  upon  the  occurrence  of  the 
Revolution,  entitled  to  make  their  choice,  either  to  remain 
subjects  of  the  British  crown  or  to  become  members  of  the 
United  States.  This  choice  was  necessarily  to  be  made 
within  a  reasonable  time.  In  some  cases  that  time  was 
pointed  out  by  express  acts  of  the  Legislature ;  and  the  fact 
of  abiding  within  the  State  after  it  assumed  independence, 
or  after  some  other  specific  period,  was  declared  to  be  an 
election  to  become  a  citizen.  That  was  the  course  in  Mas- 
sachusetts, New  Tork,  New  Jersey  and  Pennsylvania.  In 
other  States  no  special  laws  were  passed,  but  each  case  was 
left  to  be  decided  upon  its  own  circumstances,  according  to 
the  voluntary  acts  and  conduct  of  the  party.  That  the  gen- 
eral principle  of  such  a  right  of  electing  to  remain  under  the 
old  or  to  contract  a  new  allegiance  was  recognized  is  ap- 
parent from  the  cases  of  Commonwealth  v.  Chapma/n^  1  Dall., 
53 ;  Caignet  v.  Pettit,  2  id.,  234 ;  Martin  v.  Commonwealth, 
1  Mass.,  347,  397;  Palmer  v.  Downer,  2  id.,  179,  n.;  S.  C, 
Dane's  Abridg,,  c.  131,  art.  7,  sec.  4 ;  Kilham  v.  Wa/rd,  2 
Mass.,  236,  and  Gardner  v.  Wa/rd,  2  id.,  244,  n.,  as  explained 
and  adopted  in  Inhabitants  of  Cummington  v.  Inhabitants  of 
Springfield,  2  Pick.,  394,  and  note;  Inhabitants  of  Manchester 
V.  Inhabitants  of  Boston,  16  Mass.,  230,  and  M^Ilvaine  v. 
Coxe^s  Lessee,  4  Cranch,  209,  211.  But  what  is  more  directly 
in  point,  it  is  expressly  declared  and  acted  upon  by  the  Su- 

1  Ware  v.  Hylton,  3  DalL,  232;  Sharswood's  Blackstone,  p.  47,  note  11. 

2  Federalist  (Federal  Statesmen  Series),  No.  39,  212;  Federalist  (Fed- 
eral Statesmen  Series),  No.  40;  Wilson's  Works,  voL  2,  p.  571. 

8  3  Pet,  160. 


20  ELECTIOXS.  [chap.  I. 

preme  Court  of  l^ew  York,  in  the  case  oiJackson  v.  Wldte, 
20  Johns.,  313." 

§  22.  In  Ware  v.  Hylton}  the  powers  of  Congress,  prior 
to  the  ratification  of  the  Articles  of  Confederation,  were 
upheld  by  the  Supreme  Court  upon  the  ground  of  ratifica- 
tion. The  Court  say :  "  It  has  been  inquired  what  powers 
Congress  possessed  from  the  first  meeting  in  September, 
1774,  until  the  ratification  of  the  Articles  of  Confederation 
on  the  1st  of  March,  1781  ?  It  appears  to  me  that  the  pow- 
ers of  Congress  during  that  whole  period  were  derived  from 
the  people  they  represented,  expressly  given,  through  the 
medium  of  their  State  conventions  or  State  Legislatures ;  or 
that  after  they  were  exercised  they  were  impliedly  ratified 
by  the  acquiescence  and  obedience  of  the  people.  After 
the  Confederacy  was  completed,  the  powers  of  Congress 
rested  on  the  authority  of  the  State  Legislatures  and  the  im- 
plied ratifications  of  the  people."  '^ 

§  23.  It  is  to  be  concluded  from  the  foregoing  that  the 
provisions  of  the  Constitutions  of  the  different  States  defin- 
ing who  shall  exercise  the  right  to  vote  are  binding  upon  all 
citizens,  irrespective  of  age  or  sex.  It  remains  to  be  ascer- 
tained whether  the  people,  by  establishing  the  qualifications 
of  electors  and  delegating  the  right  of  suffrage  to  the  per- 
sons possessed  of  the  enumerated  qualifications,  have  thereby 
surrendered  irrevocably  the  sovereignty  to  the  electors. 
Who  are  now  the  people?  Do  the  inhabitants  of  the  Com- 
monwealth stiU  retain  the  sovereignty  as  at  the  beginning, 
or  is  it  now  vested  in  a  new  and  restricted  class — the  voters  ? 

§  24.  It  is  here  that  we  encounter  some  difference  of 
opinion  among  the  authorities,  brought  about,  evidently,  by 
the  fact  that  in  some  cases  the  question  has  been  viewed 
from  a  theoretical  standpoint,  while  in  others  the  practical 
phase  of  the  matter  alone  has  been  considered.  So  far  as 
the  theory  of  suffrage  is  concerned,  there  is  no  reason  to  be- 
lieve that,  by  delegating  the  privilege  to  the  voters,  the  peo- 

J  3  DalL,  233. 

^McCullough  V.  Maryland,  4  Wheat.,  404 


CHAP.  I.]  EIGHT   TO   VOTE.  21 

pie  at  large  have  done  more  than  to  create  a  trust  of  which 
they  remain  the  beneficiaries.  In  many,  if  not  in  all,  of  the 
States,  the  Constitutions  which  create  the  voters  contain  in 
some  form  an  expression  of  the  sentiment  that  all  govern- 
ment is  founded  on  the  consent  of  the  people.^  Thus,  in 
the  Constitution  of  Pennsylvania,  there  is  the  declaration 
that  the  people  have  at  all  times  an  inalienable  and  inde- 
feasible right  to  alter,  reform  or  abolish  their  govermnent 
in  such  manner  as  they  may  think  proper,  and  "  the  people  " 
here  meant  have  been  declared  by  the  Supreme  Court  of 
Pennsylvania  to  be  those  who  constitute  the  entire  State, 
male  and  female  citizens,  infants  and  adults.^  If  the  people 
can  abolish  their  government,  they  can  also  abolish  the 
voters,  who  are  but  an  agency  of  government.  Had  it  been 
the  intention  to  surrender  the  sovereignty  into  the  hands  of 
the  voters,  it  is  improbable  *that  a  grant  of  such  importance 
would  have  been  left  in  any  manner  to  implication.  It  is 
safe  to  say  that  in  no  State  has  any  express  grant  been  made 
by  constitutional  provision  or  otherwise. 
—  §  25.  Considering  the  question  further,  from  a  legal  as 
well  as  a  theoretical  standpoint,  there  is  abundant  authority 
at  hand  to  show  that  the  voters  have  no  power  except  as 
the  delegates  of  the  people,  and  that  in  exercising  the  fran- 
chise it  has  always  been  as  the  representatives  of  the  entire 
citizenship.  In  the  comparatively  recent  case  of  Wells  v. 
Bain^  (decided  in  1874),  the  Supreme  Court  of  Pennsyl- 
vania, in  discussing  who  are  the  people  who  possess  the 
right  to  alter  or  reform  the  government,  say :  "  The  people 
here  meant  are  the  whole  —  those  who  constitute  the  entire 
State,  male  and  female,  infants  and  adults.  A  mere  major- 
ity of  these  persons  who  are  qualified  as  electors  are  not  the 
people,  though  when  authorized  to  do  so  they  may  repre- 
sent the  whole  people.     *    *    *    Three  and  a  half  or  four 

1  Story  on  the  Constitution,  ch.  9,  §  581;  Anderson  v.  Baker,  33  Md., 
620. 

2  Wells  V.  Bain,  75  Pa.  St.,  47. 
'75  Pa.  St.,  47. 


22  ELECTIONS.  [chap.  I. 

millions  of  people  cannot  assemble  themselves  together  in 
their  primary  capacity.  They  can  act  only  through  consti- 
tuted agencies.  No  one  is  entitled  to  represent  them,  unless 
he  can  show  their  warrant,  how  and  when  he  was  constituted 
their  agent.  The  great  error  of  the  argument  of  those  who 
claim  to  be  the  people  or  the  delegates  of  the  people  is  in 
the  use  of  the  y^ovH people.  "Who  are  the  people?  Not  so 
many  as  choose  to  assemble  in  a  country  or  a  city,  or  a  dis- 
trict, of  their  own  will,  and  to  say,  We  are  the  people. 
"Who  gave  them  power  to  represent  all  others  who  stay 
away  ?  Not  even  the  press,  that  wide-spread  and  most  pow- 
erful of  all  subordinate  agencies,  can  speak  for  them  by  au- 
thority. The  voice  of  the  people  can  be  heard  only  through 
an  authorized  form,  for,  as  we  have  seen,  without  this  au- 
thority a  part  cannot  speak  for  the  whole." 

§  26.  In  Anderson  v.  Baker^  the  Supreme  Court  of 
Maryland  had  before  it  for  consideration  the  test-oath  pro- 
vision of  the  Constitution  of  Maryland,  and  the  registry  law 
of  1866  of  that  State,  it  being  contended  by  the  petitioner 
that  these  were  null  and  void,  by  reason  of  the  prohibitions 
of  the  Constitution  of  the  United  States.  The  Court  in 
this  case  took  occasion  to  investigate  carefully  where  the 
sovereignty  resides,  and  its  conclusions,  as  expressed  by 
Judge  Cochran,  are  so  clear  and  satisfactory  as  to  entitle 
them  to  be  incorporated  here  at  some  length. 

"The  people  in  their  original  sovereign  character,"  he 
says,  "  are  the  fountain-head  of  governmental  authority,  and 
all  the  powers  necessary  to  be  exercised  in  the  continued 
administration  of  a  representative  government  originate  in 
and  are  delegated  by  an  exertion  of  their  sovereign  will. 
These  propositions,  founded  in  necessity,  and  illustrated  by 
long  continued  practice,  have  become  the  received  doctrines 
of  the  American  people.  *  *  *  The  people,  in  clothing 
a  citizen  with  the  elective  franchise  for  the  purpose  of  se- 
curing a  consistent  and  perpetual  administration  of  the 
government  they  ordain,  charge  him  with  the  performance 

»  23  Md..  577-80. 


CHAP.  I.]  EIGHT   TO   VOTE.  23 

of  a  duty  in  the  nature  of  a  public  trust,  and  in  that  respect 
constitute  him  a  representative  of  the  whole  people.  This 
duty  requires  that  the  privilege  thus  bestowed  should  be 
exercised,  not  exclusively  for  the  benefit  of  the  citizen  or 
class  of  citizens  professing  it,  but  in  good  faith  and  with  an 
intelligent  zeal  for  the  general  benefit  and  welfare  of  the 
State.  *  *  *  The  elective  franchise,  within  the  purview 
of  this  case,  is  a  privilege  conferred  on  the  citizen  by  the 
sovereign  power  of  the  State  to  subserve  a  general  public 
purpose,  and  not  for  private  or  individual  advantage ;  that, 
as  against  the  power  conferring  it,  the  citizen  acquires  no 
indefeasible  right  to  its  continuance  or  enjoyment;  and  that 
the  people  of  the  State,  in  the  exercise  of  their  sovereign 
power,  may  qualify,  suspend  or  entirely  withdraw  it  from 
any  citizen  or  class  of  them,  providing  always  that  repre- 
sentation of  the  people,  the  essential  characteristic  of  a  re- 
publican government,  be  not  disregarded  or  abandoned."  ^ 

§  27.  Following  this  investigation  of  what  we  have  called 
the  theoretical  side  of  the  question,  we  come  to  a  considera- 
tion of  those  authorities  which  hold  that  the  sovereignty  in 
this  country,  for  all  practical  purposes  at  least,  has  been 
made  over  to  and  is  now  vested  in  the  voters.  The  distin- 
guished jurist,  David  Dudley  Field,  in  a  paper  read  before 
the  Congress  of  Jurisprudence  and  Law  Reform  in  1893, 
intimates  that  the  people  are  the  voters.^  A  no  less  eminent 
authority,  Judge  Cooley,  in  his  work  on  Constitutional  Lim- 
itations,^ says :  "  The  political  maxim,  that  the  government 
rests  upon  the  consent  of  the  governed,  appears,  therefore, 

1  United  States  v.  Cruikshank,  92  U.  S.,  542;  Jamison  on  Const.  Con., 
sec.  51  and  sec.  332. 

2  "  What  is  meant  by  the  people?  At  the  time  of  the  great  dec- 
laration, the  people  meant  adult  white  men.  After  the  Civil  War, 
and  for  some  years,  the  people  meant  adult  men,  white  or  black.  What 
is  meant  now?  In  the  State  of  Wyoming,  by  the  people  is  meant  adult 
men  and  women,  white  or  black.  In  that  most  advanced  of  all  the 
States  in  this  respect,  a  woman  as  well  as  a  man  votes  for  the  repre- 
sentatives of  the  people."  Extract  from  Address  by  David  Dudley  Field, 
as  printed  in  Chicago  Legal  News,  vol.  25,  p.  438. 

3  2  Cooley,  Const.  Lim.  (6th  ed.),  p.  40. 


24  ELECTIONS.  [chap.  I. 

to  be  practically  subject  to  many  exceptions.  And  when  we 
say  the  sovereignty  of  the  States  is  vested  in  the  people, 
the  question  very  naturally  presents  itself,  What  are  we  to 
understand  by  'the  people,'  as  used  in  this  connection? 
"What  should  be  the  correct  rule  upon  this  subject  it  does 
not  now  fall  within  our  pro\ance  to  consider.  Upon  this 
men  will  theorize,  but  the  practical  question  precedes  the 
formation  of  the  Constitution,  and  is  addressed  to  the  peo- 
ple themselves.  As  a  practical  fact,  the  sovereignty  is  vested 
in  those  persons  who  are  permitted  by  the  Constitution  of 
the  State  to  exercise  the  elective  franchise." 

§  28.  In  Blair  v.  Ridgely  it  is  said :  "  Ordinarily  it  may 
be  said,  when  we  speak  of  the  people,  the  entire  body  of  the 
inhabitants  of  the  State  are  comprehended.  But  this  cannot 
be  so  in  a  political  sense.  It  can  only  mean  that  portion  of 
the  inhabitants  who  are  intrusted  with  political  power. 
Neither  in  this  nor  any  of  the  American  States  did  the  in- 
habitants, other  than  qualified  voters,  ever  exercise  political 
power,  and  it  is  only  through  the  instrumentality  of  ballots 
that  such  power  is  or  can  be  exercised.  This  truth  is  ex- 
hibited by  the  fact  that,  while  the  Constitution  declared  that 
all  power  resided  in  the  people,  less  than  one-fourth  of  the 
inhabitants  exclusively  exercised  the  political  power,  and 
more  than  three-fourths  were  always  disfranchised."  ^ 

§  29.  It  is  to  be  observed  that  Judge  Cooley  states  that  the 
sovereignty  is  vested  in  the  voters  as  a  practical  fact.  It  is 
fair  to  presume  that  he  attaches  to  the  word  vested  the  mean- 
ing accorded  to  it  in  Colder  v.  Bull^  viz.,  possessed  of  the 
power  to  do  certain  acts  or  to  possess  certain  things  ac- 

1  Blair  v.  Ridgely,  41  Mo.,  161.  The  distinction  attempted  to  be  drawn 
here  between  the  people  in  an  ordinary  or  general  sense  as  including 
the  entire  body  of  the  inhabitants,  and  the  people  in  a  political  sense 
as  including  only  the  inhabitants  who  are  intrusted  with  political 
power,  is,  it  is  respectfully  suggested,  unsound.  The  term  "  The  peo- 
ple "  can  have  but  one  meaning,  and  an  attempt  to  confound  the  people 
with  the  voters  in  any  sense  is  to  apply  to  the  trustee  a  title  which  be- 
longs only  to  the  ce&tuis  que  trust, 

2  3DaU.,  394 


CHAP.  I.]  EIGHT   TO  VOTE.  26 

cording  to  the  law  of  the  land,  and  not  as  possessed  of  an. 
inalienable  and  indefeasible  right.  Again,  in  saying  that 
the  sovereignty  is  vested  in  the  voters  as  di  practical  fact,  he 
expressly  excludes  from  his  discussion  a  theoretical  con- 
sideration of  the  question.  But  with  due  respect  for  such 
eminent  authority  the  writer  believes  that  this  view  is  in- 
correct, even  from  a  practical  standpoint,  and  that  the  body 
politic  is  sovereign  not  only  in  theory,  but  that  it  has  power 
as  an  actual  fact  to  assume  and  exercise  at  will  the  attri- 
butes of  sovereignty. 

§  30.  Sovereignty  is  exercised  in  two  ways :  first,  regu- 
larly or  indirectly  through  the  agencies  established  by  the 
sovereign  power;  and  second,  irregularly  or  directly  by  the 
people  acting  as  a  political  unit  without  the  intervention  of 
agencies.  It  must  be  conceded  that  so  long  as  the  exercise 
of  sovereignty  is  confined  to  the  regular  or  indirect  method, 
the  exercise  of  sovereignty  is  practically  in  the  hands  of  the 
voters.  But  its  exhibition  is  by  no  means  confined  to  this 
nielEod.  Aside  from  the  revolutionary  exercise  of  power, 
which  though  unsanctioned  by  law  is  possible  under  all  forms 
of  government,  and  which,  when  exercised  successfully,  must 
be  considered  as  the  direct  act  of  the  aggregate  people,  there 
is  an  additional  important  method,  in  which  the  entire  people 
exercise  the  sovereign  power,  viz.,  in  the  force  of  public  opin- 
ion, which  is  wielded  directly  by  the  body  politic,  and  which 
must  be  acknowledged  as  a  potent  and  constant  factor  in 
the  affairs  of  government.  What  can  withstand  the  con- 
sensus of  opinion  of  the  entire  people?  The  government 
and  all  its  agencies,  including  the  electors  themselves,  yield 
to  it  and  conform  to  its  demands.  This  is  well  illustrated 
by  the  remarks  of  David  Dudley  Field,  already  referred  to, 
in  which  attention  is  called  to  the  change  which  has  taken 
place  in  the  personnel  of  the  voters  since  the  establishment 
of  the  government.  First,  adult  white  males,  then  adult 
males,  black  and  white,  and  now,  in  some  instances,  adult 
males  and  females,  white  and  black.  What  has  brought 
about  this  change  ?    Is  it  due  primarily  to  the  action  of  the 


26  ELEonoNB.  [chap.  I. 

voters  ?  It  must  be  admitted  that,  so  far  as  the  extension  of 
the  elective  franchise  to  women  is  concerned,  it  has  been 
brought  about  in  obedience  to  a  public  sentiment,  shaped  to 
a  great  degree  by  the  women  themselves,  who  prior  thereto 
formed  the  bulk  of  the  disfranchised  portion  of  the  com- 
munity. If  woman's  suffrage  becomes  general  in  the  United 
_  States,  as  now  seems  probable,  and  as  is  advocated  and 
predicted  by  Mr.  Field,  it  will  be  as  the  result  of  the  opin- 
ions of  the  whole  body  of  the  citizens,  and  an  example  of 
the  practical  exercise  of  sovereignty  by  the  community  at 
large.^  May  it  not  be  said,  therefore,  as  a  practical  fact  that 
the  wiU  of  the  entire  citizenship  is  still  sovereign  in  the 
United  States? 

§  31.  It  is  unnecessary  for  the  purposes  of  this  work  to 
determine  whether  the  sovereignty  in  this  country  resides 
in  the  people  of  the  United  States  as  a  Kation,  or  in  the 
people  as  divided  into  groups  by  States.  It  is  sufficient  to 
note  that  so  far  as  the  right  to  fix  the  qualifications  of 
voters  is  concerned,  the  sovereignty  is  in  the  people  of  the 
respective  States,  by  virtue  of  the  provisions  of  the  Federal 
Constitution,  subject  only  to  the  limitations  contained  in  the 
Fifteenth  Amendment,  that  the  right  of  citizens  of  the 
United  States  to  vote  shall  not  be  abridged  on  account  of 
race,  color  or  previous  condition  of  servitude.^ 

§  32.  It  being  within  the  power  of  the  people  to  confer 
the  right  of  suffrage,  the  qualifications  of  electors  are  de- 
termined by  the  representatives  of  the  people  in  convention 
assembled,  and  are  defined  by  the  Constitution  adopted  or 
recommended  in  such  conventions,  and  afterwards  ratified 
by  the  voters.' 

§  33.  It  is  within  the  power  of  the  people  by  constitu- 
tional provision  to  limit  the  discretion  of  the  voters  in  the 
choice  of  persons  to  fill  public  offices.  The  Constitutions 
of  all  the  States  define  the  qualifications  of  the  persons  to 

1  Jamison  on  Const.  Con.,  sees.  23  and  56. 

2  See  authorities  cited  in  connection  with  section  1  of  following 
chapter. 

»  McCulloch  V.  State  of  Maryland,  4  Wheat.,  404. 


OHAP.  I.]  KIGHT   TO   VOTE.  27 

be  chosen  to  the  more  important  official  positions,  the  usual 
requirements  pertaining  to  nativity  and  age.  When  the 
qualifications  of  office-holders  are  thus  prescribed,  the  voters 
are  precluded  from  choosing  any  one  to  office  who  is  not 
possessed  of  the  enumerated  qualifications.^ 

§  34r.  The  sovereign  power  having  been  delegated  by  the 
electors  to  the  other  agencies  of  government,  the  people  can 
only  withdraw,  abridge  or  alter  the  power  so  delegated  in 
the  manner  provided  by  their  own  Constitutions,  and  not 
in  any  manner  nor  at  any  time  that  may  please  a  major- 
ity.* Nor  can  the  people  assume  to  exercise  power  which 
they  have  delegated.  "  If  the  entire  population  of  a  State 
could,  as  it  is  often  expressed,  *  meet  upon  some  vast  plain,* 
so  long  as  that  population  was  organized  under  a  Constitu- 
tion like  those  with  which  we  are  familiar,  though  it  would 
be  physically  able  to  carry  into  execution  such  ordinances 
as  should  get  themselves  passed  at  its  tumultuous  parlia- 
ment, it  clearly  would  have  no  constitutional  or  legal  right 
to  pass  an  ordinance  at  all.  Such  an  assemblage  would 
not  constitute,  in  a  political  sense,  the  people.  The  people  ^ 
of  a  State  is  the  jpolitical  tody  —  the  corjporate  unit  —  in  j 
which  are  vested,  as  we  have  seen,  the  ultimate  powers  / 
of  sovereignty;  not  its  inhabitants  or  population  consid;J^ 
ered  as  individuals.  It  is  never  to  be  forgotten  that  the 
individuals  constituting  a  State  have,  as  such,  no  political, 
but  only  civil  rights.  Except  as  an  organized  hody,  that  is, 
except  when  acting  hy  its  recognised  organs,  the  entire  popu- 
lation of  the  State  already  constituted,  were  it  assembled 
on  some  vast  plain,  could  not  constitutionally  pass  a  law  or 
try  an  offender."  ^ 

1  Jamison  on  Const.  Con.,  351. 

2  Koehler  u  Hill,  60  Iowa,  543;  In  re  Duncan,  139  U.  S.,  461 ;  Van  Horn's 
Lessee  v.  Dorrance,  2  DalL,  308;  State  v.  Cunningham,  81  Wis.,  497; 
Anderson  v.  Tyree  (Utah),  42  Pac.  Rep.,  201.  An  election  must  be  con- 
ducted by  an  authority  constituted  by  law,  and  the  mere  fact  that  it 
is  conducted  honestly  is  not  sufficient.  Van  Amringe  u.  Taylor,.  108 
N.  C,  196. 

*  Jamison  on  Const.  Con.,  sec.  237. 


28  KLEOnONS.  [OHAP.  I, 

§  35.  While  the  true  theory  of  a  representative  govern- 
ment requires  that  the  elective  franchise  should  be  extended 
to  every  citizen,  who  is  competent  and  free  to  form  an  intel- 
ligent opinion  upon  questions  affecting  his  own  welfare  as  a 
member  of  the  Commonwealth,  the  same  principle  requires 
that  those  who  are  not  thus  qualified,  either  from  lack  of 
education  or  intelligence,  or  because  of  dependence  on  the 
will  of  others,  should  be  represented  by  deputies  competent 
to  act  for  them.^  A  fair  and  adequate  representation  of  the 
whole  people  by  the  electors  is  equivalent  in  point  of  useful- 
ness to  universal  suffrage,  for  it  accomplishes  all  the  purpose 
of  the  entire  people  as  effectually  as  if  each  citizen  were  to 
cast  his  ballot ;  nor  does  it  do  violence  to  any  right  of  the 
people,  for  their  rights  are  adequately  and  fully  protected 
when  in  the  hands  of  an  intelligent  body  of  voters  impelled 
by  self-interest  to  faithfully  execute  the  trust  reposed  in 
them.* 

1  The  exclusion  of  lunatics,  felons  and  idiots  from  the  right  to  vote 
rests  on  obvious  grounds.  Infants  are  doubtless  excluded  because  of  a 
lack  of  intelligence  and  freedom,  of  will  essential  to  a  proper  exercise 
of  the  right.  The  exclusion  of  women  originated  in  the  common-law 
idea  of  the  merger  of  a  married  woman's  existence  in  that  of  her  hus- 
band, and  in  her  unfitness  by  nature  for  the  occupation  of  civil  life. 
CJooley  on  Const.  Lim.,  p.  38;  Brad  well  v.  State,  17  WaR,  140. 

«8  Wilson's  Works,  pp.  14r-16. 


CHAPTEK  II. 

THE  RIGHT  TO  VOTE  — HOW  PRESCRIBED  AND  REGULATED. 

§  36.    Power  of  the  States  and  of  the  United  States  to  fix  qualificationa 
86.    Power  of  the  State  limited  by  the  Fifteenth  Amendment  to  the 

Constitution  of  the  United  States. 
37.    State  regulations  followed  by  Federal  government. 
37.    Except  such  as  conflict  with  Federal  Constitution  or  laws. 
88.    Qualifications  of  voters  for  Presidential  electora 
39.    Nature  and  extent  of  power  of  Congress  over  suffrage. 
40-41.    Rights  conferred  by  Fifteenth  Amendment. 
40-41.    Power  of  Congress  thereunder. 

42.  Decisions  of  United  States  Supreme  Court. 

43.  Regulation  of  Federal  elections;  power  of  Congress, 
48-44.    Punishment  of  fraud  in  Federal  elections. 

45.  Reg\ilation  of  Territorial  elections. 

46.  Nature  of  right  of  suffrage  and  whence  derived. 

47.  Legislature  cannot  add  to  or  alter  constitutional  qualificationa 
47.  Change  of  election  districts. 

48-49,  51-52.    Right  to  representation  in  government  cannot  be  im- 
paired or  taken  away. 
50.    Voter  may  be  questioned  as  to  qualifications. 
52-56.    Validity  of  acts  prescribing  test  oaths. 

57.  Act  authorizing  Governor  to  impair  right  of  suffrage  void. 

58.  Regulations  must  be  reasonable. 

58-62.  Distinction  between  regulation  and  impairment  of  the  right 
to  vote. 

62.  Casting  vote  in  case  of  tie. 

63.  Right  may  be  limited  to  male  citizens. 

68.  But  may  by  constitutional  provision,  or  sometimes  by  legislative 
act,  be  extended  to  females. 

68.    But  only  upon  same  terms  and  conditions  as  are  applied  to  males. 

63a.  And  cannot  be  extended  by  statute  to  females  when  construct- 
ively limited  to  males  by  constitutional  provision. 

64.  Construction  of  Fourteenth  Amendment  to  the  Constitution  of 

the  United  States. 
Ma.  In  what  States  women  may  vote. 
64&.  Constitution  of  New  Jersey  of  1776  permitting  female  suffrage. 

§  36.     Subject  to  the  limitation  contained  in  the  Fifteenth 
Amendment  to  the  Constitution  of  the  United  States,  the 


30  ELECTIONS.  [chap.  H. 

power  to  fix  the  qualijfications  of  voters  is  vested  in  the 
States.^  Each  State  fixes  for  itself  these  qualifications,  and 
the  United  States  adopts  the  State  law  upon  the  subject  as 
the  rule  in  Federal  elections,  as  will  be  seen  by  reference  to 
Section  II  of  Article  I  of  the  Constitution,  which  provides 
as  follows : 

"The  House  of  Eepresentatives  shall  be  composed  of 
members  chosen  every  second  year  by  the  people  of  the 
several  States,  and  the  electors  in  each  State  shall  ha/oe  the 
qualifications  requi/red  for  electors  of  the  most  numerous 
lyranch  of  the  State  Legislature^ 

The  qualifications  of  voters  for  Presidential  electors  are 
also  to  be  fixed  by  the  States,  as  will  be  seen  by  reference 
to  Section  I  of  Article  II  of  the  Constitution,  which  pro- 
vides that  "  each  State  shall  appoint,  in  such  manner  as  the 
Legislature  thereof  may  direct,  a  number  of  electors  equal  to 
the  whole  number  of  Senators  and  Eepresentatives  to  which 
the  State  may  be  entitled  in  the  Congress." 

Inasmuch  as  Representatives  in  Congress,  and  Presiden- 
tial electors,  are  the  only  Federal  officers  to  be  chosen  by 
popular  ballot,  it  is  manifest  that  all  controversies  concern- 
ing the  right  of  individuals  to  vote,  whether  at  a  State  or  a 
Federal  election,  must  be  determined  by  reference  to  the 
local  or  State  law  upon  this  subject;  provided,  of  course, 
that  such  local  or  State  law  is  not  in  conflict  with  any  pro- 
vision of  the  Constitution  of  the  United  States,  or  with  any 
constitutional  act  of  Congress. 

§  37.  As  already  intimated,  the  power  of  the  State  gov- 
ernment to  prescribe  the  qualifications  of  voters  is  limited 
by  the  terms  of  the  Fifteenth  Amendment  to  the  Constitu- 
tion of  the  United  States,  which  provides  as  follows: 

"  The  right  of  citizens  of  the  United  States  to  vote  shall 
not  be  denied  or  abridged  by  the  United  States,  or  by  any 

1  [Kinneen  v.  Wells,  144  Mass.,  497;  Minor  v.  Happersett,  21  Wall.,  178; 
United  States  v.  Reese,  92  U.  S.,  214;  United  States  v.  Cruikshank,  93 
U.  S.,  542;  United  States  v.  Crosby,  1  Hughes,  448;  Anthony  v.  Haider- 
man,  7  Kan.,  50.] 


CHAP.  II.]       BIGHT   TO    VOTE HOW   PKESCRIBED,  ETC.  31 

State,  on  account  of  race,  color,  or  previous  condition  of 
servitude. 

"  The  Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation," 

The  effect  of  this  constitutional  provision  most  clearly  is 
to  render  absolutely  null  and  void  all  provisions  of  a  State 
constitution  or  State  law  which  come  in  conflict  with  the 
amendment  itself,  or  with  any  appropriate  act  of  Congress 
oassed  to  enforce  it  or  for  the  purpose  of  regulating  the  elec- 
tion of  Federal  oflBcials.^  Speaking  of  the  clause  of  the  Con- 
stitution first  above  quoted,  the  Supreme  Court  of  the  United 
otates  has  said :  ^ 

"  The  States,  in  prescribing  the  qualifications  of  voters 
for  the  most  numerous  branch  of  their  own  Legislatures,  do 
not  do  this  with  reference  to  the  election  for  members  of 
Congress.  Nor  can  they  prescribe  the  qualifications  for 
voters  for  those  eo  nomine.  They  define  who  are  to  vote 
for  the  popular  branch  of  their  own  Legislature,  and  the  Con- 
stitution of  the  United  States  says  the  same  persons  shall 
vote  for  members  of  Congress  in  that  State.  It  adopts  the 
qualification  thus  furnished  as  the  qualification  of  its  own 
electors  for  members  of  Congress." 

§  38.  With  respect  to  the  qualifications  of  voters  for 
Presidential  electors,  it  is  proper  to  observe  that  the  whole 
subject  is  committed  to  the  States  respectively  by  the  pro- 
visions of  Section  I,  Article  II,  of  the  Constitution,  above 
quoted.  Each  State  is  to  appoint  electors  in  "  such  manner 
as  the  Legislature  thereof  may  direct."  This  authorizes,  of 
course,  the  Legislature  to  provide  for  the  choosing  of  electors 
by  popular  vote  (which  is  the  usual  mode) ;  but  it  also  au- 
thorizes the  Legislature  to  provide  for  their  appointment  or 
election  by  the  Legislature  itself,  or  perhaps  by  the  executive ; 
though  this  latter  mode  would  be  a  wide  departure  from  the 
practice  of  the  States,  and  would  remove  the  choice  so  far 

1  For  further  discussion  of  power  of  Congress  to  i  jgulate  Federal  elec- 
tions, see  Chapter  VI. 
"i  Ex  parte  Yarbrough,  110  U.  S.,  66a 


32  ELECTIONS.  [chap.  U, 

from  the  people  that  it  is  not  to  be  expected  that  any  State 
will  adopt  it. 

§  39.  -Before  proceeding  to  the  consideration  of  the  quali- 
fications of  voters  as  prescribed  by  State  laws,  let  us  con- 
sider the  nature  and  extent  of  the  power  of  Congress  over 
the  subject.  This  order  of  discussion  is  most  convenient  be- 
cause, as  already  intimated,  all  power  to  legislate  respecting 
the  right  of  suffrage  not  expressly  or  by  necessary  implica- 
tion conferred  by  the  Constitution  upon  Congress  resides 
with  the  States;  and  therefore,  when  we  have  fixed  the 
limits  of  the  power  of  Congress,  it  may  be  assumed  that  all 
laws  not  falling  within  those  limits  are  to  be  enacted  by  the 
States. 

It  must,  however,  be  borne  in  mind  that  we  are  for  the 
present  considering  the  question  of  the  qualifications  of 
voters  simply,  and  that  we  are  not,  in  this  connection,  to 
deal  with  the  subject  of  the  mode  and  manner  of  conduct- 
ing elections,  or  the  prescribing  of  regulations  to  secure  a 
fair  and  free  expression  of  the  popular  will.  This  latter  sub- 
ject will  be  considered  in  another  connection,^  and  it  will  be 
seen  that  Congress  may  prescribe  such  regulations  applicable 
to  what  may  be  called  Federal  elections — that  is  to  say,  elec- 
tions for  Representatives  in  Congress  and  electors  for  Presi- 
dent and  Yice-President ;  but  such  regulations  cannot  go  to 
the  extent  of  defining  the  qualifications  of  voters.  They 
must  relate  to  the  time,  place  or  manner  of  holding  or  con- 
ducting such  elections. 

§  40.  The  Fifteenth  Amendment  to  the  Constitution  does 
not  confer  the  right  of  suffrage,  but  it  does  nevertheless 
confer  upon  citizens  of  the  United  States  a  very  substantial 
right  which  Congress  may  protect  and  enforce  by  appropriate 
legislation,  viz.,  the  right  of  exemption  from  discrimination 
in  the  exercise  of  the  elective  franchise,  on  account  of  race, 
color,  or  previous  condition  of  servitude.  The  power  of 
Congress  to  legislate  upon  the  subject  of  the  qualifications 
of  persons  voting  at  State  elections  rests  solely  upon  this 

iChapters  viand  VII. 


CHAP.  II.]       KIGHT    TO   VOTE HOW   PKESCKIBED,  ETC.  33 

amendment.  This,  for  the  reason  that  Congress  has  power 
to  legislate  for  the  protection  of  such  rights  and  immunities 
only  as  are  created  by  or  dependent  upon  the  Constitution 
of  the  United  States.^ 

In  the  case  here  cited  it  was  held  that  the  power  of  Con- 
gress in  legislating  for  the  enforcement  of  the  Fifteenth 
Amendment  is  limited  to  the  enactment  of  such  statutes  as 
are  appropriate  to  prevent  discrimination  on  account  of  race, 
color,  or  previous  condition  of  servitude,  and  that  those 
provisions  of  an  act  of  Congress  passed  in  pursuance  of  said 
amendment  which  are  not  confined  in  their  operation  to  such 
discrimination  are  beyond  the  power  of  Congress,  and  there- 
fore unconstitutional  and  void.  It  was  accordingly  held  that 
the  third  and  fourth  sections  of  the  act  of  Congress  of  May 
31,  1870,2  not  being  confined  in  their  operation  within  the 
required  limit,  as  above  stated,  Avere  unauthorized  and  in- 
valid. Upon  an  examination  and  construction  of  these  two 
sections  the  court  reached  the  conclusion  that  their  opera- 
tion was  not  intended  to  be  confined  to  cases  of  unlawful 
discrimination  on  account  of  race,  etc.;  and  it  appearing 
that  the  statute,  by  its  terms,  was  broad  enough  to  cover 
offenses  without  as  well  as  others  within  the  power  of 
Congress,  the  question  arose  whether  it  could  be  made 
available  for  the  punishment  of  persons  who  may  have  been 
guilty  of  such  acts  of  discrimination  as  Congress  might  have 
prohibited  and  punished.  Upon  full  consideration,  the  Court 
held  that  the  sections  named  could  not  be  limited  by  judi- 
cial construction  so  as  to  make  them  operate  only  on  that 
which  is  within  the  jurisdiction  of  Congress,  and  that  there- 
fore they  must  be  set  aside  as  not "  appropriate  legislation  " 
for  the  enforcement  of  the  amendment. 

§  41.  The  statement  in  the  opinion  of  the  Supreme  Court 
of  the  United  States  just  referred  to,  that  the  Fifteenth 
Amendment  conferred  no  aifirmative  right  to  vote,  was 

1  United  States  v.  Reese,  92  U.  a,  214 

2  10  Stat.,  140. 

8 


34  ELECTIONS.  [chap.  H. 

qualified  in  the  subsequent  case  of  Tarbrough.^  It  is  there 
^own  that  in  all  the  States  which  did  not  remove  from  their 
Constitutions  and  laws  the  provisions  limiting  the  right  to 
vote  to  white  men,  this  amendment  did  substantially  confer 
upon  colored  citizens  the  right  to  vote,  by  annulling  those 
discriminating  provisions.     The  Court  said :  ^ 

"  In  such  cases  this  fifteenth  article  of  amendment  does, 
propria  vigore,  substantially  confer  on  the  negro  the  right 
to  vote,  and  Congress  has  the  power  to  protect  and  enforce 
that  right.  In  the  case  of  United  States  v.  Beese,  so  much 
relied  on  by  counsel,  this  court  said,  in  regard  to  the  Fif- 
teenth Amendment,  that  'it  has  invested  the  citizens  of  the 
United  States  with  a  new  constitutional  right  which  is 
within  the  protecting  power  of  Congress.  That  right  is  an 
exemption  from  discrimination  in  the  exercise  of  the  elective 
franchise  on  account  of  race,  color,  or  previous  condition  of 
servitude.'  This  new  constitutional  right  was  mainly  de- 
signed for  citizens  of  African  descent.  The  principle,  how- 
ever, that  the  protection  of  the  exercise  of  this  right  is 
within  the  power  of  Congress  is  as  necessary  to  the  right  of 
other  citizens  to  vote  as  to  the  colored  citizen,  and  to  the 
right  to  vote  in  general  as  to  the  right  to  be  protected 
against  discrimination.  The  exercise  of  the  right  in  both 
instances  is  guarantied  by  the  Constitution,  and  should  be 
kept  free  and  pure  by  Congressional  enactments  whenever 
that  is  necessary." 

§  42.  The  question  of  the  constitutional  power  of  Con- 
gress to  enact  statutes  regulating  Federal  elections,  and  par- 
ticularly as  to  the  constitutionality  of  the  aforesaid  act  of 
May  31,  1870,'  has  been  considered  by  the  Supreme  Court 
of  the  United  States,  and  wiU  be  further  noticed  hereafter.* 
In.  this  connection,  however,  it  may  be  said  that  the  decis- 
ions of  the  Supreme  Court  have  settled  the  question  of  the 

1 110  U.  S.,  651. 
2  P.  665. 
» Ante,  %  40. 
« Chapter  VL 


CHAP.  II.]       EIGHT   TO   VOTE HOW   PKE8CKIBED,  ETC.  35 

power  of  Congress  under  the  Constitution,  either  to  take 
into  its  own  hands  the  entire  matter  of  regulating  elections 
for  representatives  in  Congress  and  electors  for  President 
and  Yice-President,  or  to  supplement  by  way  of  amend- 
ment, alteration  or  addition,  any  regulation  upon  that  sub- 
ject which  the  States  may  have  enacted.^  Such  regulations, 
however,  when  prescribed  by  Congress,  do  not  interfere 
with  the  laws  of  the  several  States  which  prescribe  the 
qualifications  of  voters,  except  in  so  far  as  they  are  founded 
upon  the  distinction  of  race,  color  or  previous  condition  of 
servitude,  or  are  of  such  a  character  as  to  interfere  or  con- 
flict with  such  lawful  regulations  as  Congress  may  enact.^ 

§  43.  In  the  case  of  United  States  v.  Quinn^  Judge  Wood- 
ruff, of  the  United  States  Circuit  Court  for  the  southern 
district  of  New  York,  had  occasion  to  discuss  the  constitu- 
tionality of  the  twentieth  section  of  the  act  of  Congress  of 
May  31,  1870,  punishing  a  fraudulent  registration  for  the 
purpose  of  voting  for  a  member  of  Congress.  In  a  very 
clear  and  able  opinion  he  demonstrates  that  Congress  has 
power  to  punish  frauds  perpetrated  in  an  attempt  to  pre- 
vent a  fair  election  of  a  member  of  that  body.  This  is  not 
an  attempt  to  fix  the  qualifications  of  electors  for  Repre- 
sentatives in  Congress.  These  are  fixed  by  the  State,  and 
are  the  same  as  those  belonging  to  electors  for  members  of 
the  most  numerous  branch  of  the  State  Legislature.  It  only 
provides  in  effect  that  "it  shall  be  an  offense  against  the 
laws  of  the  United  States  to  contribute,  by  fraud  or  viola- 
tion of  the  State  registry  laws,  to  the  sending  of  a  Repre- 
sentative to  the  Congress  of  the  United  States  who  is  not 
clothed  with  the  authority  which  a  true  expression  of  the 
popular  will  would  give ;  and  that  is  all."  It  would  indeed 
be  a  strange  anomaly  if  the  Government  of  the  United  States 
could  be  obliged  to  look  upon  commission  of  frauds  and 

1  Ex  parte  Seibold,  100  U.  S.,  371;  Ex  parte  Clark,  Id.,  899. 

2  See  oases  last  cited;  also  Ex  parte  Mcllwee,  3  Am.  Law  Times,  251; 
S.  C,  Bright.  Elec  Cas.,  65;  McKay  v.  Campbell,  2  Abb.  U.  S.  Rep.,  120. 

»  Bright.  Elec  Cas.,  592. 


36  ELECTIONS.  [chap.  H. 

crimes  perpetrated  for  the  purpose  of  putting  into  the  halls 
of  Congress  men  who  have  no  right  there,  and  who  owe  their 
seats  to  corruption,  and  yet  remain  powerless  to  prevent  or 
punish  it.  If  it  be  said  that  it  is  the  exclusive  prerogative 
of  the  States  to  punish  election  frauds,  whether  committed, 
on  the  effort  to  elect  State  officers  simplv,  or  members  of  the 
National  legislature,  or  Presidential  electors,  the  answer  is 
that  the  States  have  the  power,  but  not  the  exclusive  power, 
to  punish  frauds  appertaining  to  the  election  of  Federal  offi- 
cers. The  power  to  punish  such  frauds  against  itself  be- 
longs to  the  United  States  Government,  and  is  nothing  more 
nor  less  than  the  power  of  self-protection. 

§  44.  The  power  of  the  Legislature  is  limited  to  prescrib- 
ing such  regulations  as  do  not  substantially  impair  the  con- 
stitutional privileges  of  citizens.^ 

In  accordance  with  this  doctrine  it  has  been  held  by  the 
House  of  Eepresentatives  of  the  United  States  that  where, 
just  prior  to  the  election,  certain  voting  precincts  were  abol- 
ished, thus  leaving  large  numbers  of  voters  from  twenty-five 
to  thirty-five  miles  from  the  nearest  polls,  votes  lost  by  this 
means  could  not  be  counted  as  if  cast.'  The  correctness  of 
this  ruling  is  not  doubted ;  but  it  is  believed  to  be  equally 
clear  that  if  the  number  of  persons  who  are  by  such  means 
deprived  of  the  right  to  vote  is  so  large  that  if  cast  they 
might  have  changed  the  result,  the  election  ought  to  be  set 
aside. 

Legislation  of  this  character  may  be  carried  to  the  point 
or  disfranchising  large  bodies  of  voters,  and  where  such  ap- 
pears to  be  the  case  it  is  the  duty  of  the  courts  of  justice  to 
interfere. 

§  45.  Congress  has  power  to  legislate  for  the  Territories 
upon  all  subjects,  including  the  right  of  suffrage  therein ; 

1  Monroe  v.  Collins,  17  Ohio  St,  665.  [A  statute  prohibiting  election- 
eering in  the  vicinity  of  any  polling  place  is  a  reasonable  police  regula- 
tion to  secure  good  order  about  the  polls,  and  does  not  infringe  the 
constitutional  rights  of  the  citizen  to  express  his  sentiments  on  public- 
men  and  measures.    State  v.  Black,  53  N.  J.,  463.J 

2  Lawrence  v.  Sypher,  43d  Congreaa, 


CHAP.  II.]       EIGHT   TO    VOTE HOW   PKESCEIBED,  ETC.  37 

and,  in  the  exercise  of  this  power,  may  abridge  the  right  of 
voting  as  by  the  act  of  Congress  of  March  22,  1882,  prohib- 
iting bigamists,  polygamists,  etc.,  from  voting.^ 

§  46.  The  right  of  suffrage  is  not  a  natural  right,  nor  is 
it  an  absolute,  unqualified  personal  right.^  It  is  a  right  de- 
rived in  this  country  from  constitutions  and  statutes.  It  is, 
as  we  have  seen,  regulated  by  the  States,  and  their  power 
to  fix  the  qualifications  of  voters  is  limited  only  by  the  pro- 
visions of  the  Fifteenth  Amendment  to  the  Constitution, 
which  forbids  any  distinction  on  account  of  "race,  color, 
or  previous  condition  of  servitude,"  and  by  the  general 
power  of  the  Federal  government  to  regulate  its  own  elec- 
tions.' 

§  47.  Where  election  districts  are  changed  by  legislative 
enactment,  or  other  proper  authority,  questions  of  impor- 
tance sometimes  arise  as  to  the  effect  of  such  change  upon 
the  rights  of  the  electors  thereof.  It  is  of  course  clear  that 
when  the  boundaries  of  a  district  within  which  a  voter  has 
the  right  to  vote  are  changed  and  such  provision  is  made  as 
to  preserve  his  right  of  suffrage,  the  change  will  be  held 
valid.*  It  has,  however,  been  held  that  an  act  of  the  Legis- 
lature assuming  to  establish  a  second  election  district  in  an 
organized  town,  in  the  absence  of  a  provision  of  law  under 
which  an  election  can  be  held  in  the  new  district,  is  uncon- 
stitutional and  void.'  The  Constitution  of  Minnesota  under 
which  this  case  arose  provided  that  the  right  of  voting 
should  be  exercised  in  the  election  district  in  which  the 
elector  resided ;  and  it  was  accordingly  held  that  an  act  which 
took  him  out  of  the  district  in  which  he  had  a  right  to  vote, 

1  Murphy  v.  Ramsey,  114  U.  S,,  15. 

2  [Bloomer  v.  Todd,  1  L.  R.  A.,  Ill,  note.  See,  also,  Ch.  I,  Sec.  4] 
'Huber  v.  Riley,  53  Pa.  St.,  112:  Ridley  u  Sherbrook,  3  Cold.,  569;  An- 
derson V.  Baker,  23  Md.,  531;  Bright.  Elec.  Cas.,  27.  See,  also,  1  Story, 
Const.,  Ch.  9,  §§  581,  582;  Rison  v.  Farr,  24  Ark.,  161;  United  States  v. 
Reese,  92  U.  S.,  214;  Ex  parte  Yarhrough,  110  Id.,  651;  Spencer  r.  Board, 
etc.,  1  MacArthur,  169. 

*  People  V.  Holihan,  29  Mich.,  116;  [Duncan  v.  Shenk,  109  Ind.,  26.] 
s  State  V.  Fitzgerald  (Sup.  Ct.  Minn.,  1887),  32  N.  W.  Rep.  78a 


38  ELECTIONS.  [chap.  II. 

and  placed  him  in  another  in  which  he  had  not  such  right, 
could  not  be  upheld.^ 

§  48.  The  right  to  vote  for  and  be  represented  by  county 
and  State  oflBcers  being  a  constitutional  right,  it  cannot  be 
impaired  or  taken  away  by  legislation.^  Hence  it  has  been 
held  upon  constitutional  ground  that  if  an  act  for  the  organi- 
zation of  a  new  county  was  so  framed  that  the  inhabitants 
of  such  new  county  could  not  participate  in  the  election  of 
judges  and  State  senators,  the  same  was  unconstitutional 
and  void.  And  the  fact  that  a  future  Legislature  was  ex- 
pected to  remedy  this  difficulty  by  incorporating  such  ncAv 
county  in  a  senatorial  and  judicial  district  does  not  cure  the 
defect  in  such  an  act.' 

§  49.  It  is  not  competent  for  a  State  Legislature,  in  pro- 
viding for  a  special  election  to  determine  the  location  of  a 
county  seat,  or  to  determine  any  other  matter,  to  require 
any  other  qualifications  for  voters  at  such  election  than 
those  prescribed  by  the  Constitution.  Constitutional  pro- 
visions concerning  the  qualifications  of  voters  apply  to  all 
elections,  whether  general  or  special.* 

1  See,  also,  Perkins  v.  Caraway,  59  Miss.,  223. 

2  [Pearson  v.  Supervisors,  91  Va.,  322.] 

'  Lanning  v.  Carpenter,  20  N.  Y.,  447;  People  v.  Maynard,  15  Mich., 
463,  471;  Cooley's  Const.  Lim.,  616. 

*  State  V.  Williams,  5  Wis.,  308;  State  v.  Lean,  9  Id.,  279.  A  city  ordi- 
nance which  requires  as  a  qualification  for  voting  anything  more  than 
is  required  by  the  Constitution  of  the  State  is  void.  McMahon  v.  Savan- 
nah, 66  Ga.,  217;  S.  C,  42  Am.  Rep.,  65.  And  the  words  "electors  of  said 
cities,"  used  in  the  statute  respecting  elections  of  city,  town  and  vil- 
lage officers,  mean  residents  within  the  city,  town  or  village  who  have 
the  qualifications  of  electors  prescribed  by  the  Constitution,  State  v. 
Tuttle,  53  Wis.,  45.  But  it  has  been  held  in  Kentucky  that  where  a  town 
charter  provided  that  town  trustees  shall  be  elected  by  the  votes  of  voters 
who  shall  have  paid  their  taxes,  although  the  Kentucky  Constitution 
contained  no  such  provision  concerning  the  qualifications  of  the  voters 
generally,  yet  the  town  charter  was  valid,  and  only  those  who  paid  their 
taxes  could  vote  for  town  trustees.  The  constitutional  provision  was 
held  inapplicable  to  municipal  elections.  Bookner  v.  Gordon,  81  Ky., 
665.  [All  persons  who  are  within  tlie  class  designated  by  the  Constitu- 
tion are  entitled  to  vote  for  all  offices  elective  by  the  people,  whether 


CHAP,  II.J       EIGHT    TO    VOTE HOAV    PRESCRIBED,  ETC.  39 

§  50.  It  is,  however,  competent  for  the  Legislature  to  pre- 
scribe questions  to  be  propounded  to  voters  calculated  to 
draw  from  them  the  proof  of  their  qualifications  to  vote  at 
an  election,  and  require  the  voter  to  answer  thereto  before 
he  can  vote.  This  does  not  add  to  the  qualifications  of 
voters;  it  only  provides  the  means  of  testing  the  voter's 
right.^ 

§  51.  In  accordance  with  the  principle  that  the  Legisla- 
ture cannot  add  to  the  constitutional  qualifications  of  voters, 
it  has  been  held  that  where  the  Constitution  requires  that  a 
person  shall  have  a  residence  in  the  township  where  he  offers 
to  vote,  without  prescribing  any  period  of  residence,  a  stat- 
ute which  undertakes  to  require  a  residence  in  the  township 
of  twenty  days  is  unconstitutional  and  void.'^  A  residence 
hona  fide,  for  a  time  however  short,  satisfies  the  constitu- 
tional requirement,  and  it  is  fair  to  presume  that  it  was  in- 
tended that  a  person  having  all  the  other  qualifications,  and 
removing  from  one  township  to  another  at  any  time  prior 

the  offices  to  be  filled  are  created  by  the  Constitution  or  by  Legislature. 
Consequently,  a  statute  cannot  confine  the  right  to  vote  for  road  com- 
missioners to  the  freeholders  of  the  district  where  the  Constitution 
does  not  contain  a  property  qualification,  nor  extend  it  to  females  or  to 
non-residents  of  the  district  in  the  absence  of  a  constitutional  provision 
granting  the  right  of  suffrage  to  such  persons.  Allison  v.  Blake,  57  N.  J., 
6.  The  word  "  electors,"  as  used  in  Section  1,  Article  7,  of  the  Constitu- 
tion of  Colorado,  is  used  in  its  restricted  political  sense,  and  means 
public  electors  for  the  choice  of  public  officers.  A  statute  requiring 
the  question  of  the  annexation  of  a  town  or  city  to  be  submitted  to  the 
determination  of  such  electors  as  have  in  the  year  next  preceding  paid 
a  property  tax  therein  is  not  unconstitutional  as  imposing  an  addi- 
tional qualification  for  electors.  Mayor  of  Town  of  Valverde  v.  Shat- 
tuck,  19  Colo.,  104.  The  provisions  of  the  Constitution  of  Florida,  pre- 
scribing the  qualifications  of  electors  at  all  elections  under  it,  do  not 
apply  to  elections  for  municipal  officers  in  that  State,  but  such  elections 
are  subject  to  statutory  regulation.    State  v.  Dillon,  32  Fla.,  545.] 

1  State  V.  Lean,  supra.  [Where  the  Legislature  has  the  right  to  pre- 
scribe the  qualifications  of  voters  at  a  municipal  election,  it  may  also 
provide  the  means  of  ascertaining  the  persons  who  possess  the  qualifi- 
cations prescribed.    State  v.  Dillon,  33  Fla.,  545.] 

2Quinn  v.  State,  35  Ind.,  486. 


40  ELECTIONS.  [chap.  IL 

to  the  day  of  election,  should  retain  the  right  to  vote.  If 
twenty  days'  residence  in  the  township  may  be  required 
under  such  a  Constitution,  a  longer  period  may  be,  and  thus 
the  Constitution  might  be  rendered  meaningless  or  nugatory. 

§  52.  The  Legislature  of  a  State  cannot  add  to  the  qualifi- 
cations of  an  elector,  as  prescribed  by  the  State  Constitution, 
and  of  course  cannot  deprive  any  citizen  of  any  right  con- 
ferred either  by  the  State  or  Federal  Constitution.  Where 
the  Constitution  prescribes  the  qualifications,  whoever  pos- 
sesses them  has  a  constitutional  right  to  vote,  and  of  this 
right  he  cannot  be  deprived  by  legislative  enactment.^  This 
rule  has  been  applied  in  the  construction  of  the  Constitution 
of  Pennsylvania,  which  declares  affirmatively  that  all  per- 
sons possessing  certain  qualifications  shall  be  entitled  to 
vote.  The  Legislature  of  that  State,  in  1866,  passed  an  act 
declaring,  in  substance,  that  no  person  should  be  permitted 
to  vote  who,  having  been  drafted  in  the  military  service  and 
duly  notified,  had  failed  to  report  for  duty.  But  it  was  held 
by  the  Supreme  Court  of  that  State  that  this  was  an  attempt 
of  the  Legislature  to  disfranchise  those  to  whom  the  Consti- 
tution had  given  the  rights  of  electors,  and  that  the  act  was 
therefore  unconstitutional  and  void.'^ 

It  has  been  held  by  the  Supreme  Court  of  Arkansas'  that 
while  a  State  law  requiring  that  a  voter  shall  swear  to  sup- 
port the  Constitution  of  the  United  States  does  not  restrict 
the  right  to  vote  or  add  to  the  qualifications  required,  yet 

1  The  General  Assembly  cannot  in  any  way  change  the  qualifications 
of  voters  in  State,  county,  township,  city  or  town  elections.  The  qualifi- 
cations of  voters,  as  fixed  by  the  Constitution,  are  the  same  in  all  eleo 
tions.    People  v.  Canaday,  73  N,  C,  198. 

2  McCafferty  v.  Guyer,  59  Pa.  St.,  109;  S.  C..  Bright.  Elec,  Cas.,  44.  [An 
act  of  the  Legislature  of  Indiana,  which  makes  the  exercise  of  the  right 
of  suffrage  by  one  who  has  been  absent  from  the  State  six  months  or 
more,  on  business  of  the  State  or  the  United  States,  depend  upon  proof 
that  he  is  a  tax-payer  of  the  county,  is  unconstitutional,  as  it  requires 
a  property  qualification  of  this  class  of  voters,  in  addition  to  the  quali- 
fications prescribed  by  the  Constitution.   Morris  v.  Powell,  125  Ind,,  281.] 

3  Rison  V.  Farr,  24  Ark.,  161,  and  note  to  same  case  in  87  Am.  Dec  64. 


CHAP.  II.]       EIGHT   TO   VOTE HOW    PKESCEIBED,  ETC.  41 

to  add  to  the  qualifications  prescribed  by  the  Constitution 
a  provision  that  the  voter  shall  purge  himself,  by  oath,  of 
all  crimes,  or  of  any  particular  crime,  is  beyond  the  power 
of  the  Legislature.  Upon  this  ground  it  was  held  that  an 
act  of  the  Legislature  of  Arkansas,  approved  May  31,  1864, 
prescribing  as  a  qualification  for  voting  an  oath  that  the 
voter  had  not  voluntarily  borne  arms  against  the  United 
States,  nor  aided  directly  or  indirectly  the  so-called  Confed- 
erate authorities,  was  unconstitutional  and  void.* 

The  same  doctrine  has  been  laid  down  by  the  Supreme 
Court  of  North  Carolina.* 

It  will  be  observed  that  these  cases  relate  to  the  constitu- 
tionality of  acts  of  State  Legislatures  which  are  supposed 
to  affix  conditions  or  impose  burdens  not  permitted  by  the 
State  Constitution.  "Where  the  qualifications  of  voters  are 
prescribed  by  constitutional  provision,  and  the  right  is  lim- 
ited to  a  particular  class  of  persons,  no  distinction  being 
made  on  account  of  race  or  color,  it  is  well  settled  that  no 
provision  of  the  Federal  Constitution  is  violated.' 

§  53.  The  Amended  Constitution  of  Missouri  required 
such  an  oath  to  be  taken  as  a  prerequisite  to  exercising  the 
right  to  vote,  as  well  as  to  the  exercise  of  the  duties  of  cer- 
tain callings  in  life,  such  as  that  of  attorney  at  law,  minister 
of  the  gospel,  etc.  In  Cummings  v.  Missouri,^  the  Supreme 
Court  of  the  United  States,  by  a  bare  majority  of  the  judges, 
held  this  provision  of  the  Constitution  of  Missouri  to  be 
void,  as  being  in  the  nature  of  pains  and  penalties,  so  far  as 
it  related  to  the  oath  required  to  be  taken  by  ministers  of 
the  gospel.  Mr.  Justice  Miller,  however,  for  the  minority 
of  the  court,  delivered  a  dissenting  opinion  which  has  been 
well  characterized  as  "  an  opinion  which  for  ability,  logic, 
and  admirable  judicial  criticism  has  rarely  been  excelled 
even  in  that  august  tribunal."    The  question  of  the  validity 

1  But  see  Randolph  v.  Good,  3  W.  Va.,  551. 

2  People  V.  Canaday,  73  N.  C,  19a 

3  Blair  v.  Ridgley,  41  Mo.,  63. 
«  4  Wall,  277. 


4:2  ELECTIOKS.  [chap.  II. 

t  # 

of  this  test  oath,  as  applied  to  voters,  came  before  the  Su- 
preme Court  of  Missouri  in  Blair  v.  Ridgley^  and  that  Court, 
in  an  elaborate  and  able  opinion,  held  it  valid. 

§  54.  This  decision  was  not  in  conflict  with  Cummingt 
V.  Missouri,  sup^ra.  In  the  latter  case  the  Supreme  Court 
of  the  United  States  held  that  the  right  to  adopt  and  follow 
the  calling  or  vocation  of  a  preacher,  or  minister  of  the  gos- 
pel, was  a  natural  right  —  a  right  absolute  and  vested ;  and 
that  it  was  therefore  not  within  the  power  of  the  State  to 
prescribe  a  test  oath  to  be  taken  as  a  condition  precedent  to 
its  enjoyment.  But  the  right  to  vote  is  not  a  natural  right ; 
it  is  not  such  a  right  as  belongs  to  man  in  a  state  of  nature. 
It  follows  that  the  reasoning  of  the  Court  in  Cummin^s  v. 
Missouri  does  not  apply  to  the  question  of  the  validity  of 
the  test  oath  as  applied  to  a  voter.  And  it  also  follows  that, 
inasmuclf  as  the  right  to  vote  is  derived  from  and  regulated 
by  the  State  Constitution  and  laws,  it  is  competent  for  the 
State  in  its  Constitution,  or  by  statute  if  its  Constitution 
permits,  to  prescribe  loyalty  as  a  qualification,  and  to  en- 
force the  requirement  by  exacting  of  every  voter  an  oath  of 
loyalty. 

§  55.  This  question  arose  in  the  House  of  Representa- 
tives of  the  United  States  in  Burch  v.  Van  Horn^  and  the 
decision  of  the  committee,  and  of  the  House,  was  in  accord- 
ance with  the  view  just  expressed.  The  committee  use  the 
following  language  in  their  report : 

"  The  ninth  section  of  the  same  article  provides  that  after 
sixty  days  from  the  time  the  Constitution  takes  effect,  no 
person  shall  be  '  permitted  to  practice  as  an  attorney  or  coun- 
selor-at-law,  nor  after  that  time  shall  any  person  be  com- 
petent as  a  bishop,  priest,  deacon,  minister,  elder  or  other 
clergyman  of  any  religious  persuasion,  sect,  or  denomination, 
to  teach  or  preach,  or  solemnize  marriages,  unless  such  per- 
son shall  have  first  taken,  subscribed,  and  filed  said  oath.' 

uiMo.,  ea 

«2  Bart,  205. 


CHAP.  II.]       EIGHT   TO   VOTE HOW   PEESCKIBED,  ETC.  43 

"  Under  this  ninth  section  of  the  Constitution  arose  the 
case  of  Cummings  v.  Missouri^  in  which  it  was  held  by  a 
majority  of  the  Supreme  Court  of  the  United  States  that 
this  provision,  having  the  effect  to  deprive  persons  of  the 
right  to  practice  professions  and  pursue  vocations  lawful  in 
themselves,  in  consequence  of  acts  done  prior  to  the  adoption 
of  the  Constitution,  could  only  have  been  intended  as  pun- 
ishment for  such  acts,  and  was  therefore  in  essence  and  sub- 
stance an  ex  jpost  facto  law,  and  therefore  forbidden  by  the 
Constitution  of  the  United  States.  The  contestant  claims 
that  the  same  application  of  principles  requires  the  same  de- 
cision in  relation  to  voters ;  that  the  virtual  disfranchisement 
of  persons  who  were  voters  under  the  previous  Constitution 
and  laws  of  the  State,  but  who  are  prevented  from  voting 
under  the  new  Constitution,  by  reason  of  their  inability  to 
take  the  oath  it  requires,  can  only  be  regarded  as  a  punish- 
ment for  the  act  which  stands  in  the  way  of  taking  the  oath, 
and  that  the  Constitution  of  the  United  States  prohibits  the 
infliction  of  punishment  by  subsequent  legislation.  If  such 
disfranchisement  must  be  regarded  as  established  for  the 
purpose  of  punishing  the  persons  thus  deprived  of  the  right 
of  voting,  it  must  be  admitted  to  come  entirely  within  the 
reasoning  by  which  the  above-cited  judgment  of  the  court 
is  supported. 

"  Your  committee  believe  that  the  provisions  of  the  new 
Constitution  of  Missouri  may  be  supported,  so  far  as  they 
require  this  oath  of  voters,  without  at  all  trenching  upon  the 
decision  of  the  Supreme  Court. 

"  Each  of  the  States  of  the  Union  have  hitherto  regulated 
suffrage  within  their  own  limits  for  themselves,  and  in  such 
a  manner  as  the  people  of  the  State  deemed  most  conducive 
to  their  own  interests  and  welfare.  Suffrage  is  a  political 
right  or  privilege  which  every  free  community  grants  to  such 
number  and  class  of  persons  as  it  deems  fittest  to  represent 
and  advance  the  wants  and  interests  of  the  whole.    No  State 

14  Wall,  277. 


44  ELECTIONS.  [chap.  H. 

grants  it  to  all  persons,  but  with  such  limitations  as  the  in- 
terests of  all  and  the  interest  of  the  State  require.  When 
>nce  granted  it  is  not  a  vested,  irrevocable  right,  but  it  is 
aeld  at  the  pleasure  of  the  power  that  gave  it,  and  the  State 
ma\ ,  by  a  change  of  its  fundamental  law,  restrict  as  well  as 
enlargo  it.  When,  therefore,  the  State  of  Missouri,  in  chang- 
mg  its  Constitution,  saw  fit  to  declare  that  the  interests  of 
the  State  and  of  the  people  of  the  State  would  be  promoted 
by  withholding  the  right  of  voting  from  all  persons  who 
could  not  take  the  prescribed  oath,  they  exercised  no  greater 
or  higher  power  than  exists  in  every  State." 

§  56.  The  object  of  prescribing  an  oath  to  be  taken  by 
an  elector  who  is  challenged  at  the  polls,  or  before  register- 
ing officers,  is  to  test  the  right  of  such  person  to  vote  or 
register.  It  is  doubtful  whether  a  statute  requiring  a  chal- 
lenged person  to  take  an  oath,  the  nature  of  which  is  such 
as  not  in  any  degree  to  test  his  right,  would  be  held  valid. 
It  would  probably  be  held  to  be  not  a  proper  regulation  of, 
but  an  unnecessary  and  unwarranted  restriction  upon,  the 
exercise  of  his  right  to  vote.  Thus,  in  Nevada  it  was  held 
that  a  statute  requiring  an  oath  to  be  taken  by  an  appli- 
cant for  registration,  to  the  effect  that  he  has  not,  since 
arriving  at  the  age  of  eighteen  years,  voluntarily  been  en- 
gaged in  rebellion  against  the  government,  is  void,  because 
the  N'evada  Constitution  provides  that  persons  who  were 
engaged  in  the  rebellion,  and  who  were  afterwards  par- 
doned, may  vote.^ 

§  57.  An  act  purporting  to  authorize  the  Governor  of  a 
State  to  set  aside  the  registration  of  the  voters  of  a  county, 
and  thus  deprive  them  of  the  right  to  vote,  is  unconstitu- 
tional and  void.  It  is  not  doubted  that  the  people  of  a 
State,  expressing  their  will  in  the  form  of  a  constitutional 
provision  or  otherwise,  may  prescribe  the  qualifications  of 
voters,  whereby  the  elective  franchise  may  be  bestowed  upon 
persons  not  before  entitled  to  it,  and  may  be  taken  away 
from  persons  before  entitled  to  it,  subject  to  restrictions 

1  Da  vies  v.  McKerky,  5  Nev.,  368. 


CHAr,  II.]       KIGHT   TO   VOTE HOW   PEESCRIBED,  ETO.  45 

upon  this  power  contained  in  the  Constitution  of  the  United 
States.  But  the  right  of  suffrage  once  conferred  by  a  Con- 
stitution, the  Legislature  has  no  power  to  divest  it.  It  fol- 
lows that  where  a  person,  entitled  under  the  Constitution  to 
vote,  has  complied  with  such  law  in  regard  to  registration 
and  the  like  as  the  Legislature  may  prescribe  by  way  of  reg- 
ulating the  exercise  of  the  right,  the  Legislature  cannot  au- 
thorize the  Governor,  or  any  other  official,  to  take  the  right 
away  from  him.^ 

§  58.  Where  the  Constitution  confers  upon  the  electors 
the  right  to  choose  an  officer,  it  is,  as  we  have  elsewhere 
seen,  often  a  difficult  question  to  determine  how  far  the 
Legislature  may  go  in  the  way  of  providing  the  necessary 
regulations  for  the  regular  and  orderly  expression  of  that 
choice.2  Thus,  in  Pennsylvania  the  Constitution  provided 
that  vacancies  in  judicial  offices,  happening  by  death,  resig- 
nation or  otherwise,  should  be  filed  "  by  appointment  by  the 
Governor,  to  continue  until  the  first  Monday  of  December 
succeeding  the  next  general  election.''^  Under  this  provision 
it  was  doubtless  intended  that  an  election  by  the  people  to 
fill  any  such  vacancy  should  be  held  at  the  next  general  elec- 
tion after  its  happening ;  but  the  General  Assembly  provided 
by  law  that  all  such  vacancies  should  be  filled  at  the  first 
general  election  happening  "  more  than  three  calendar  months 

1  State  V.  Staten,  6  Cold.,  233;  Sheaf e  v.  Tillman,  2  Bart.,  907. 

2  [The  Constitution  of  Tennessee  does  not  require  an  educational 
qualification  of  voters.  The  provisions  of  the  act  of  the  Legislature  of 
Tennessee  (Acts  of  1890,  ch.  24),  which  makes  it  a  misdemeanor  for  any- 
one to  remove  ballots  from  the  voting  place  or  to  aid  a  voter  in  the 
selection  or  marking  of  his  ticket,  and  which  requires  all  voters,  in- 
cluding illiterates,  to  select  and  mark  their  own  tickets  with  such  as- 
sistance only  as  the  election  officers  may  lawfully  afford,  are  valid  and 
constitutional.  These  provisions  do  not  require  such  educational  quali- 
fications on  the  part  of  voters  as  render  them  obnoxious  to  the  State 
Constitution.  They  are  the  just  and  reasonable  exercise  of  the  legis- 
lative power  to  enact  laws  to  secure  the  freedom  of  elections  and  the 
purity  of  the  ballot-box.  Nor  do  they  impose  oppressive  or  impossible 
conditions  upon  the  exercise  of  the  elective  franchise.  Cook  v.  State, 
90  Tenn.,  407.] 


46  ELECTIONS.  [chap.  II. 

after  the  vacancy  shall  occur.''''  The  question  of  the  constitu- 
tionality of  this  act  arose  in  Commonwealth  v.  Maxwell,^  and 
it  was  held  to  be  constitutional.  It  was  conceded  by  the 
court  in  that  case,  as  indeed  it  must  be  by  all,  that  a  law  in- 
tended to  take  away  or  unriecessarily  and  unreascmahly  post- 
pone and  embarrass  the  right  of  election  would  be  set  aside 
as  unconstitutional.  But  it  was  held  that  a  provision  requir- 
ing three  months  for  deliberation  in  the  choice  of  a  successor 
in  case  of  a  vacancy  fixes  only  a  reasonable  time,  and  is, 
therefore,  a  valid  and  proper  regulation.  This  decision  goes 
upon  the  sound  principle  that  a  Constitution  cannot  enforce 
itself ;  it  lays  down  fundamental  principles  according  to  which 
the  several  departments  it  calls  into  existence  are  to  govern 
the  people ;  but  all  auxiliary  rules  which  are  necessary  to 
give  effect  to  these  principles  must,  of  necessity,  come  from 
the  Legislature. 

§  59.  The  doctrine  that  the  Legislature  cannot  add  to  the 
eonstitutional  qualifications  of  voters  is  founded  upon  the 
well-settled  rule  of  construction  that  when  the  Constitution 
specifies  the  circumstances  under  which  a  right  may  be  ex- 
ercised, or  a  penalty  imposed,  the  specification  is  an  implied 
prohibition  against  legislative  interference  to  add  to  the 
condition  or  to  extend  the  penalty  to  other  cases.'^  And 
upon  precisely  the  same  ground  it  is  held  that,  where  the 
Constitution  defines  the  qualifications  of  an  officer,  it  is  not 
within  the  power  of  the  Legislature  to  change  or  superadd 
to  them,  unless  the  power  to  do  so  is  expressly,  or  by  neces- 
sary implication,  conferred  by  the  Constitution  itself.' 

§  60.  In  Ohio  it  has  been  held  that  an  act  of  the  State 
Legislature  authorizing  the  election  of  four  members  of  a 
police  board  at  each  election,  but  denying  to  the  elector  the 
right  to  vote  for  more  than  two,  was  in  violation  of  that 
provision  of  the  Ohio  Constitution  which  provides  that  each 
elector  "  shall  be  entitled  to  vote  at  aU  elections." 

1  27  Pa.  St.,  44. 

sCooley's  Const  Litn.,  64;  Rison  v.  Farr,  24  Ark,  161;  [Allison  v.  Blake, 
37  N.  J.,  6.] 
•Thomas  v.  Owens,  4  Md.,  189. 


IHAP.  n.]       EIGHT   TO   VOTE HOW   PKESCEIBED,  ETC.  4:7 

§  61.  While  the  Legislature  cannot  add  to,  abridge  or 
alter  t-ti?  constitutional  qualifications  of  voters,  it  may,  and 
should,  prtscribe  proper  and  necessary  rules  for  the  orderly 
exercise  of  the  right  resulting  from  these  qualifications. 
The  Legislature  must  prescribe  the  necessary  regulations  as 
to  place,  time,  manuer,  etc.  But  such  regulations  are  to  be 
subordinated  to  the  enjoyment  of  the  right  itself.^ 

It  has  been  held  under  the  authority  of  the  rule  in  Mc- 
Cafferty  v.  Guyer^  that  an  act  of  the  Legislature,  declaring 
that  a  voter  who  has  removed  from  his  district  within  ten 
days  of  the  election  may  vote  in  the  district  removed  from, 
is  unconstitutional  and  void.  This,  for  the  reason  that  the 
Constitution  of  Pennsylvania  requires  that  the  voter  should 
have  resided  in  the  election  district  "  ten  days  immediately 
preceding  the  election."'  As  remarked  by  the  Supreme 
Court  of  Alabama,  no  department  of  the  government,  nor 
all  of  them  combined,  have  the  power  to  divest  an  individual 
of  his  constitutional  right  to  suffrage.* 

§  62.  A  statute  providing  that,  "  when  two  persons  shall 
have  an  equal  number  of  votes,  the  returning  officer  shall 
have  the  casting  vote,  but  shall  not  vote  in  any  other  case 
whatsoever,"  is  a  constitutional  and  valid  statute.'  It  is  weU 
settled  that  a  citizen  by  accepting  an  office  may  waive  a 
constitutional  privilege.  The  Constitution  of  each  State 
grants  the  right  of  suffrage  to  all  electors,  and  no  elector 
can  be  deprived  of  this  right  otherwise  than  as  prescribed 
by  law.'  But  the  citizen  can  refuse  to  exercise  this  privi- 
lege, and  he  may  also  relinquish  it  for  a  time,  in  order  to 
secure  to  himself  a  greater  advantage,  and  therefore  he  may 
waive  his  right  to  vote,  in  common  with  other  citizens,  to 

iPage  V.  Allen,  58  Pa.  St.,  338,  347;  Patterson  v.  Barlow,  60  Id.,  54. 

259  Pa.  St.;  S.  C,  Bright.  Elea  Cas.,  44 

'Thompson  v.  Ewing,  1  Brewst.,  103. 

♦State  V.  Adams,  2  Stew.  (Ala.),  239. 

estate  V.  Adams,  2  Stew.  (Ala.),  231;  Bright.  Elec.  Cas.,  286. 

»  [The  Supreme  Court  of  Rhode  Island  has  jurisdiction  of  a  petition  of 
mandamus  to  a  town  council  to  order  an  election  as  required  by  stat- 
ute.   State  V.  Town  Council  of  South  Kingston,  18  R  I.,  258.] 


48  ELECTIONS.  [chap.  II. 

secure  the  honors  and  emoluments  of  an  ofnce,  and  the  power 
to  give  the  casting  vote  in  case  of  a  tie.^ 

§  63.  It  is  competent  for  a  State,  in  the  exercise  of  its 
power  to  fix  the  qualifications  of  voters,  to  limit  the  right  of 
suffrage  to  male  citizens;  and  to  do  so  is  no  violation  of  the 
Fourteenth  Amendment  to  the  Constitution  of  the  United 
States,  which  provides  that  "  no  State  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States."  ^ 

It  is  equally  within  the  power  of  the  State,  by  constitu- 
tional provision,  or  by  legislative  enactment  where  the  power 
of  the  Legislature  is  not  restricted  by  the  Constitution,  to 
confer  the  right  of  suffrage  upon  women.' 

Where  the  law  authorizes  female  suffrage  it  has  been  held 
that  the  right  of  women  to  vote  must  be  extended  upon  the 

1  In  case  of  a  tie  no  official  can  give  a  casting  vote  unless  expressly 
authorieed  to  do  so;  and  where  in  such  cases  no  mode  of  determining 
the  result  is  expressly  prescribed,  there  will  be  no  election.  Olive  v. 
O'Reily,  Minor  (Ala.),  410. 

2  United  States  v.  Anthony,  11  Blatchf.,  200;  Miner  v.  Happersett,  53 
Mo.,  58.  [Women  are  not  entitled  to  vote  by  virtue  of  the  Fourteenth 
and  Fifteenth  Amendments  to  the  Federal  Constitution.  Van  Valken- 
burg  V.  Brown,  43  CaL,  43;  Spencer  v.  Board  of  Registration,  1  Mac- 
Arthur,  169,  29  Am.  Rep..  582;  Note  to  Bloomer  v.  Todd,  1  L.  R  A.,  Ill; 
Mudge  V.  Jones,  59  Mich.,  165.] 

3  Wheeler  v.  Brady,  15  Kan.,  26;  [Plummer  v.  Yost,  144  111.,  68;  Wood- 
ley  V.  Town  Council  of  Clio,  44  S.  C,  374;  Ackerman  v.  Haenck,  147  111., 
514,  and  Belles  v.  Burr,  76  Mich.,  1.  The  organic  act  of  Washington 
Territory  provided  that  the  qualifications  of  voters  shall  be  prescribed 
by  the  Legislative  Assembly,  provided  that  the  right  of  suffrage  shall 
be  exercised  only  by  adult  citizens  of  the  United  States  (R.  S.,  §  5506). 
By  the  act  of  the  Legislative  Assembly  of  the  Territory,  approved  Jan- 
uary 18,  1888,  the  privilege  of  suffrage  was  conferred  upon  women.  It 
was  held  by  the  Supreme  Court  of  Wasliington,  in  Bloomer  v.  Todd,  1 
L.  R.  A.,  Ill,  that  the  latter  act  was  void,  as  being  in  conflict  with  the 
portion  of  the  organic  act  above  quoted;  the  words  "  adult  citizens,"  as 
used  in  the  organic  act,  meaning  adult  male  citizens  only.  Where  a 
constitutional  provision  conferring  the  elective  franchise  upon  women 
is  submitted  to  the  qualified  voters  of  the  State  for  ratification  or  re- 
jection, women  are  not  entitled  to  vote  upon  such  question  of  ratifica- 
tion or  rejection.    Anderson  v.  Tyree  (Utah),  42  Pac.  Rep.,  201.] 


CHAP.  II.]       EIGHT   TO   VOTE HOW   PEE  SCRIBED,  ETC.  49 

same  terms  and  conditions  as  are  applied  to  men,  and  that 
therefore  a  provision  that  all  male  voters  shall  be  tax-payers 
is  void,  the  same  provision  not  being  applied  to  female 
voters.^ 

[§  63a.  Where  the  Constitution  of  a  State  provides  for 
the  election  of  a  school  officer,  and  also  requires  voters  at 
"  any  election  "  to  be  males,  and  no  intent  appears  to  allow 
different  qualifications  for  voters  for  such  officer,  it  is  beyond 
the  power  of  the  Legislature  of  the  State  to  extend  to  women 
the  right  to  vote  for  such  officer.^] 

§  64.  By  the  first  clause  of  the  Fourteenth  Amendment 
of  the  Constitution  of  the  United  States,  all  persons  born  in 
the  United  States  are  citizens  thereof,  and  therefore  capable 
of  becoming  voters.  The  Constitution  does  not,  by  its  own 
terms,  confer  the  right  to  vote.  It  does  not  execute  itself. 
Legislative  action  is  necessary  to  authorize  any  particular 
class  of  persons  to  vote.  It  has  accordingly  been  held  that 
within  the  District  of  Columbia,  the  laws  of  Congress  on 
this  subject  extend  only  to  male  citizens.' 

[§  64a.  Woman  are  allowed  to  vote  in  the  States  of  Wy- 
oming, Utah  and  Colorado  in  all  State,  county  and  Federal 
elections.  They  may  vote  at  elections  of  school  officers, 
or  on  questions  connected  with  schools,  in  the  States  of 
Indiana,  Kansas,  Kentucky,  Massachusetts,  Michigan,  Min- 
nesota, Nebraska,  ]S"ew  Hampshire,  New  York,  New  Jer- 
sey, Oregon,  Vermont,  Washington  and  Wisconsin.  In  the 
State  of  Kansas  women  may  vote,  in  aU  cities  having  an 
inhabitance  of  more  than  five  hundred,  for  the  election  of 
city  or  school  officers,  or  for  the  purpose  of  authorizing  the 
issuance  of  school  bonds.     In  Arkansas  and  Mississippi  they 

1  Lyman  v.  Martin,  2  Utah,  136.  As  to  the  right  of  women  to  vote  at 
school  elections  under  the  statute  of  Nebraska,  see  State  v.  Crosby,  15 
Neb.,  444. 

2  [People  V.  English,  29  N.  E.  Rep.,  678  (111.);  In  re  Cancellation  from 
Register  List,  141  N.  Y.,  112;  In  re  Inspectors  of  Election,  25  N.  Y.  Sup., 
106a] 

3  Spencer  v.  Board  of  Registration,  1  Mac  Arthur,  169;  [State  v.  Board  of 
Elections  of  City  of  Columbus,  9  Ohio  Cir.  Ct.  Rep.,  134]. 

4 


50  ELECTIONS.  [chap.  H. 

may  vote  on  the  question  of  granting  license  for  the  sale  of 
liquors.] 

[§  645.  It  seems  that  under  the  Constitution  of  New  Jer- 
sey, framed  in  1776,  women  were  entitled  to  vote.  This 
Constitution  provided  that  all  inhabitants  of  a  certain  age 
and  residence,  and  in  possession  of  a  certain  amount  of  prop- 
erty, could  vote.  An  act  to  regulate  elections,  passed  in 
1793,  provides  that  "  every  voter  shall  deposit  his  or  her  bal- 
lot, which  will  be  a  simple  written  ticket,  containing  the 
names  of  the  persons  for  whom  he  or  she  votes."  This  is 
probably  the  first  law  authorizing  female  suffrage  in  this 
country,  and  the  provision  was  abolished  in  1807.^] 

I  pvf  inor  v.  Happersett,  21  WalL,  177  (Note  Ford's  American  Citizens' 
Manual,  p.  90).] 


CHAPTER  m. 
QUALIFICATIONS  OF  VOTERa 

§  65.  Usual  qualifications  enumerated. 
66.  Meaning  of  word  "  inhabitants.'* 
66-68.    Citizenship. 

69.  Effect  of  Treaty  with  Mexico  upon  stattia  of  inhabitants  of  ao- 

quired  territory. 
70-83.    Naturalization. 

70.  Power  of  Congress  exclusive. 

71.  Summary  of  naturalization  laws. 

73-74.    What  courts  may  grant  naturalization. 

75.  Proceedings  in  court  required. 

76.  Judgment  final 

77-79.    How  fact  of  naturalization  may  be  proved. 

79a.  Where  no  record  of  naturalization  can  be  produced. 

80-81.    Who  may  be  naturalized. 

83.    Residence  required. 

83.    Also  good  moral  character. 

84-85.  Construction  of  act  of  Congress  of  April  li,  180^  as  to  rights 
of  certain  minors. 

85a,  Collective  naturalization. 

856.  Status  of  child  of  alien  parent  who  has  filed  declaration  but  neg- 
lected to  perfect  his  naturalization. 

86.    Children  born  abroad  whose  parents  are  citizena 

§  65.  The  qualifications  of  voters  are  not  uniform  in  all 
the  States,  but  they  are  similar.  Among  those  which  are 
generally  required  are  the  following : 

1.  Citizenship,  either  by  birth  or  naturalization.* 

2.  Eesidence  for  a  given  period  of  time  in  the  State, 
county  and  voting  precinct. 

3.  Age.  In  all  the  States  it  is  required  that  a  voter  shall 
have  reached  the  age  of  twenty-one  years. 

^  [Registration  acts,  making  unjust  discrimination  between  the  rights 
of  native-born  and  naturalized  citizens  and  electors,  are  unreasonable 
and  void.    Atty.  Gen.  v.  City  of  Detroit,  78  Mich.,  545.] 


52  ELECTIONS.  [chap.  III. 

4.  In  most  of  the  States  the  right  to  vote  is  limited  to 
males.^ 

5.  In  some  States  the  payment  of  taxes  is  made  a  quali- 
fication. 

6.  And  in  some  States  ownership  of  land. 

7.  Mental  capacity. 

§  66.  In  several  of  the  States  the  elective  franchise  is 
given  by  constitutional  provision  to  "  all  male  inhabitants 
above  the  age  of  twenty-one  years,"  having  resided  in  the 
State  for  a  given  period.  An  important  question  has  arisen 
as  to  whether  unnaturalized  aliens,  otherwise  qualified,  have 
the  right  to  vote  under  a  provision  of  this  character.  The 
controversy  is  as  to  the  meaning  of  the  term  "  inhabitant," 
when  used  in  this  connection.  Does  it  embrace  the  idea  of 
citizenship?  In  Spragins  v.  Houghton^  it  was  held  that  the 
question  of  citizenship  does  not  enter  into  the  qualification 
of  a  voter  in  such  a  case,  and  the  question  is  there  discussed 
at  great  length  and  with  much  ability.  And  this  doctrine 
is  sustained  by  the  Supreme  Court  of  Pennsylvania  in  Stew- 
oH  v.  Foster? 

%  67.  In  Harvard  College  v.  Oore^  the  Supreme  Court  of 
Massachusetts  express  a  different  view  of  the  meaning  of 
the  word  "  inhabitant."  The  question  there  was  as  to  what 
constitutes  an  inhabitant  of  a  county,  within  the  meaning 
of  the  statute,  for  taking  the  probate  of  wills  and  granting 
administration  on  the  estates  of  persons  deceased  "  being  in- 
habitants of  or  residents  in  the  same  county  at  the  time  of 

1  [Where  women  are  allowed  to  vote  in  all  elections  "  pertaining  to 
school  matters,"  the  mere  fact  that  a  city,  county  or  State  officer,  as 
incident  to  his  office,  is  required  to  do  some  act  (as  where  a  mayor 
appoints  school  commissioners),  does  not  make  the  election  of  such  an 
officer  one  in  which  females  would  be  entitled  to  vote.  Brown  v.  Phil- 
lips et  al.,  71  Wis.,  239.  Where,  by  legislative  enactment,  females  are 
allowed  to  vote  for  special  purposes,  such  right  must  not  conflict  with 
any  constitutional  provisions  prescribing  the  qualifications  of  electors. 
In  re  Cancellation  from  Registry  List,  141  N.  Y.,  113.] 

2  3111.  (2  Scam.),  377. 

3  2Binn.,  110. 
*5  Pick.,  370. 


CHAP.  III.]  QUALIFICATIONS   OF  VOTERS.  53 

their  decease."  And  the  Court,  in  construing  this  statute, 
say :  "  The  term  '  inhabitant,'  as  used  in  our  laws  and  this 
statute,  means  something  more  than  a  person  having  a  dom- 
icile. It  imports  citizenship  and  municipal  relations,  whereas 
a  man  may  have  a  domicile  in  a  county  to  which  he  is  alien, 
and  where  he  has  no  political  relations."  * 

§  68.  ISTot withstanding  the  conflict  of  authority  above 
referred  to,  it  seems  very  manifest  that  where  the  term  "  in- 
habitant "  is  used  especially  in  describing  the  qualifications 
of  voters,  it  does  not  mean  the  same  thing  as  citizen.  It 
must  be  conceded  that  while  the  two  terms  may  to  a  cer- 
tain extent  mean  the  same  thing,  the  term  "citizen"  has  a  more 
extensive  signification  than  the  term  "  inhabitant,"  and  it  is 
therefore  entirely  fair  to  presume  that  when  the  framers  of 
a  law  intend  to  express  this  larger  meaning  they  will  use 
the  larger  term. 

§  69.  By  the  terms  of  the  treaty  of  peace  of  1848  be- 
tween the  United  States  and  Mexico,  it  was  provided  that 
the  inhabitants  of  the  territories  annexed  to  the  United 
States,  and  detached  from  Mexico,  might  elect  to  remain  cit- 
izens of  Mexico  by  making  known  such  election  within  one 
year  from  the  date  of  the  treaty ;  but  the  manner  of  making 
such  election  was  not  prescribed  either  by  the  treaty  or  by 
any  act  of  Congress.  Held^  that  a  declaration  in  writing, 
signed  by  persons  so  electing  to  remain  Mexican  citizens, 
and  filed  in  one  of  the  courts  of  the  Territory  of  New  Mexico, 
in  pursuance  of  a  proclamation  from  the  Governor  of  the 
Territory,  was  sufBcient,  and  that  the  persons  signing  such 
declaration  remained  citizens  of  Mexico,  and  could,  after 
making  such  declaration,  become  citizens  of  the  United 
States,  only  by  the  ordinary  process  of  naturalization,  and 
that  the  votes  of  such  persons  for  delegate  in  Congress  were 
illegal,  and  should  be  rejected,^ 

§  70.  Inasmuch  as  naturalization  is  in  nearly  all  the 
States  necessary  to  qualify  an  alien  to  vote,  it  is  proper  in 

1  And  see  Opinion  of  Judges,  C\ishing's  Elec.  Cas.,  120;  Maiden's  Case, 
Id.,  377. 

2  Otero  V.  Gallegos,  1  Bart,  177. 


64:  ELECTIONS.  [CHAP.  III. 

this  connection  to  state  briefly  the  general  requirements  of 
the  law  upon  that  subject.  Congress  has  power  "  to  estab- 
lish a  uniform  rule  of  naturalization."  ^  And  the  power  of 
Congress  under  this  clause  of  the  Constitution,  whether 
originally  exclusive  or  not,  having  been  exercised  by  the  en- 
actment of  a  general  system  of  naturalization,  has  become 
so ;  and  it  is  clear  that  no  State  can  now  pass  a  naturaliza- 
tion law.^ 

§  71.  The  following  is  a  summary  of  the  naturalization 
laws: 

1.  The  first  step  to  be  taken  by  an  alien  desiring  natural- 
ization is  the  declaration,  under  oath,  of  his  intention,  hona 
fide,  to  become  a  citizen  of  the  United  States,  and  to  re- 
nounce forever  all  allegiance  and  fidelity  to  any  foreign 
power,  potentate,  state  or  sovereignty  whatever,  and  par- 
ticularly, by  name,  the  prince,  potentate,  state  or  sovereignty 
whereof  such  alien  may  at  the  time  be  a  citizen  or  subject. 
This  declaration  may  be  made  before  the  Supreme,  Superior, 
District  or  Circuit  Court  of  some  one  of  the  States,  or  of  the 
territorial  districts  of  the  United  States,  or  a  Circuit  or  Dis- 
trict Court  of  the  United  States,' 

2.  Such  declaration  of  intention  must  be  made  at  least 
two  years  prior  to  the  time  when  such  alien  is  admitted  to 
citizenship,  and  may  be  made  before  the  clerk  of  any  of  the 
courts  above  mentioned.* 

3.  After  having  resided  in  the  United  States  five  years, 
and  in  the  State  or  Territory  where  he  applies  for  admission 
one  year  at  least,  such  alien  may  apply  to  any  court  author- 
ized to  grant  naturalization,  and  upon  satisfying  such  court 
that  he  has  complied  with  the  law  in  these  respects  —  that 

1  Const,  Art  1,  Sec.  8. 

2  Chirac  v.  Chirac,  2  Wheat,  259;  United  States  v.  Vallejo,  2  DalL,  372; 
License  Cases,  5  How.,  504,  585;  Passenger  Cases,  7  How.,  518,  556. 

8  [The  certificate  of  declaration  of  intention  to  become  a  citizen  is  the 
only  competent  evidence  of  such  fact  Berry  v.  Hull  (N.  M.),  30  Pac. 
Rep.,  936.] 

*  [The  declaration,  if  made  before  a  clerk,  need  not  be  made  in  his 
oflSce.  Andrews  v.  Judge  Circuit  Ct,  74  Mich.,  278.  Contra,  In  re 
Langtry,  31  Fed.  Rep.  879.1 


CHAP.  III.]  QUALIFICATIONS    OF   VOTERS.  55 

he  has  made  his  declaration  more  than  two  years  previously, 
and  that  he  has  behaved  as  a  man  of  good  moral  character, 
attached  to  the  principles  of  the  Constitution  of  the  United 
States  and  well  disposed  to  the  good  order  and  happiness  of 
the  same —  he  may  be  admitted  to  citizenship  by  taking  the 
oath  of  allegiance  required  by  the  statute.  But  the  applicant 
can  in  no  case  prove  his  residence  by  his  own  oath  alone. 

4.  In  addition  to  the  Federal  courts,  "  Every  court  of 
record  in  any  individual  State  having  common-law  jurisdic- 
tion and  a  seal  and  clerk  or  prothonotary  "  may  grant  nat- 
uralization. 

5.  The  naturalization  of  the  parent  also  naturalizes  all 
children  of  such  parent  under  twenty-one  years  of  age,  and 
dwelling  in  the  United  States.^ 

6.  Children  of  citizens  of  the  United  States,  though  born 
out  of  the  limits  and  jurisdiction  of  the  United  States,  are 
to  be  considered  as  citizens  of  the  United  States. 

7.  It  an  alien,  who  declares  his  intention  to  become  a 
citizen,  and  continues  to  pursue  the  directions  prescribed  for 
perfecting  his  naturalization,  shall  die  before  he  is  actually 
naturalized,  the  widow  and  the  children  of  such  alien  shall 
be  considered  as  citizens  of  the  United  States. 

8.  An  alien  minor  who  has  resided  in  the  United  States 
three  years  next  preceding  his  arriving  at  the  age  of  twenty- 
one  years,  and  who  has  resided  therein  five  years  continu- 
ously, may  apply  for,  and  obtain,  naturalization  without  any 
previous  declaration  of  intention. 

9.  Aliens  honorably  discharged  from  the  military  service 
of  the  United  States  are  allowed  to  be  naturalized  without 
any  previous  declaration,  and  on  proof  of  only  one  year's 
residence.- 

[10.  Aliens  of  the  age  of  twenty-one  years  or  upward, 
who  have   enlisted  in  the  United  States  navy  or  marine 

1  [Where  a  widow  and  her  minor  son,  both  of  foreign  birth,  came  to 
the  United  States,  and  during  the  son's  minority  his  mother  married  a 
citizen  of  the  United  States,  such  marriage  made  both  mother  and  son 
citizens.    Gumm  v.  Hubbard,  97  Mo.,  312.] 

2  See  naturalization  laws,  Rev.  Stat.  U.  S.,  p.  380;  [Cowan  v.  Prowse, 
93  Ky.,  156]. 


66  KLEcnoNS.  [chap.  in. 

corps,  and  have  served  five  consecutive  years  in  the  United 
States  navy  or  one  enlistment  in  the  United  States  marine 
corps  and  have  been  thereafter  honorably  discharged,  may 
be  naturalized  without  any  previous  declaration  on  proof  of 
good  moral  character.^] 

11.  Aliens  of  African  nativity  or  descent  may  become 
citizens  by  naturalization. ^  But  Indians  and  Mongolians  or 
Chinese  are  not  entitled  to  naturalization.' 

§  72.  Under  the  provisions  of  the  Eevised  Statutes  of 
the  United  States,*  naturalization  may  be  allowed  before 
"  any  court  of  any  of  the  United  States  having  common-law 
jurisdiction  and  a  seal  and  a  clerk."  Under  this  section  it 
has  been  held  that  it  is  not  necessary  that  the  court  grant- 
ing naturalization  should  have  full  and  complete  common- 
law  jurisdiction.  It  is  enough  if  such  court  has  power  to 
exercise  any  part  of  common-law  jurisdiction.  And  so  it 
has  been  held  that  the  City  Court  of  Yonkers,  New  Tork^ 
can  naturalize.' 

§  73.  A  court  of  record  without  any  clerk  or  prothono- 
tary  or  other  recording  oflBcer  distinct  from  the  judge  of 
such  court,  is  not  competent  to  receive  an  alien's  preliminary 
declaration  of  his  intention  to  become  a  citizen.' 

§  74:.  A  State  law  restricting  the  State  courts  and  their 
clerks  from  receiving  applications,  or  entertaiuing  jurisdic- 
tion for  the  naturalization  of  aliens  under  the  acts  of  Con- 
gress, is  not  contrary  to  the  Constitution  of  the  United  States.' 

1  [Sup.  Rev.  Stat,  voL  2,  p.  206.] 

«Rev.  Stat,  Sec.  2169. 

»i2e  Ah  Yup,  5  Sawy.,  155;  S.  G,  6  Cent  L.  J.,  387;  Act  of  Congress, 
May  6,  1882,  Chap.  126,  Sec.  14,  22  Stat,  51;  [In  re  Gee  Hop  (D.  G),  71 
Fed.  Rep.,  274.  Indians  may,  however,  become  citizens  by  complying 
with  the  provisions  of  the  act  of  February  8,  1887,  Chapter  119,  Section 
6  (Sup.  Rev.  Stat,  vol  1,  p.  536).] 

« Sec.  2165. 

5  United  States  v.  Powers,  14  Blatchf.,  223.  See,  also,  upon  this  subject, 
Glandbill,  Petitioner,  8  Met,  168;  2  Curt,  98;  State  v.  Whittemore,  50 
N.  H.,  245;  Parsons  v.  Bedford,  3  Pet,  433,  446. 

6  Butterworth's  Case,  1  Woodb.  &  M.,  823.  And  see  Ex  parte  Cregg,  3 
Curt,  98. 

'  [In  re  Gilroy,  88  Me.,  199.] 


UHAP.  in.]  QUALIFIOATIONS   OF   VOTERS.  57 

Congress  can  confer  jurisdiction  upon  State  courts  to  grant 
naturalization,  but  it  cannot  compel  such  courts  to  exercise 
that  jurisdiction  in  violation  of  a  State  law.  The  "  powers 
given  to  the  State  courts  by  the  naturalization  laws  are  naked 
powers,  which  impose  no  legal  obligation  on  courts  to  assume 
and  exercise  them,  and  such  exercise  is  not  within  their 
oflScial  duty,  or  their  oath  to  support  the  Constitution  of 
the  United  States."  1 

§  75.  Application  for  naturalization  must  be  made  in 
open  court,  and  evidence  of  residence,  etc.,  must  be  taken 
by  the  oral  examination  of  witnesses,  and  not  by  previously 
prepared  affidavits.  Certificates  of  naturalization  issued  by 
the  clerk  of  a  court,  without  any  hearing  before  the  judge 
in  open  court,  are  void,  and  confer  no  right  of  citizenship 
upon  the  holder.^ 

§  76.  The  courts  having  power  to  grant  naturalization 
are  the  final  and  exclusive  judges  as  to  all  questions  arising 
in  naturalization  cases.  They  are  to  receive  testimony,  to 
compare  it  with  the  law,  and  to  determine  all  questions  both 
of  law  and  fact.  The  judgment  and  order  of  such  a  court, 
duly  entered  on  record  in  legal  form,  granting  naturalization, 
closes  all  inquiry  as  to  the  testimony  on  which  it  has  been 
pronounced,  and,  like  every  other  judgment,  is  complete 
evidence  of  its  own  validity,  and  can  be  attacked  only  on  the 
ground  of  fraud  or  want  of  jurisdiction.' 

§  77.  A  certificate  of  naturalization  in  due  form,  issued 
by  a  court  possessing  the  jurisdiction  to  grant  the  same,  is 

'Case  of  Stephens,  4  Gray,  550;  Morgan  v.  Dudley,  18  B.  Men.,  696; 
Eump  V.  Commonwealth,  6  Casey,  475. 

2  People  V.  Sweetman,  3  Parker,  C.  R,  358;  [Behrensmeyer  v.  Kreitz, 
135  ni,  591.] 

»Spratt  V.  Spratt,  4  Pet.,  393;  The  Acorn,  2  Abb.  U.  S.,  434;  People  v. 
Welsh,  9  Abb.  (N.  Y.)  N.  Cas.,  465;  Preston  v.  Culbertson,  58  Cal.,  198. 
[Where  a  certificate  of  naturalization  is  granted  by  a  court  of  compe- 
tent jurisdiction,  it  cannot  be  impeached  by  proof  that  it  was  improp- 
erly granted,  or  was  obtained  by  false  or  perjured  testimony.  Behrens- 
meyer V.  Kreitz,  135  III,  591.  It  seems  that  the  United  States  can  sue 
in  a  Federal  court  for  the  cancellation  of  a  certificate  of  naturalization 
which  has  been  obtained  by  fraud  in  a  State  court.  United  States  v. 
Norsch,  42  Fed.  Rep.,  417.] 


58  ELECTIONS.  [chap.  III. 

jprima  facie  evidence  of  naturalization,  and  an  election 
oflBcer  cannot  go  behind  it.^  If  a  voter  could  be  obliged  to 
bring  proof  aliunde  to  sustain  such  a  certificate,  and  the 
judges  of  election  could  be  obliged  to  hear  evidence  j?ro  and 
con,  the  value  of  the  boon  of  citizenship,  which  we  confer 
upon  foreigners  who  come  to  our  shores,  would  be  greatly 
lessened.  Besides,  in  many  localities  where  the  number  of 
naturalized  voters  is  very  large,  this  mode  of  proceeding  would 
be  impossible,  since  a  few  cases  would  consume  the  whole  of 
the  day  of  election,  and  the  many  would  remain  unheard.^ 
Election  oflScers  cannot  question  the  citizenship  of  one  nat- 
uralized by  a  court  of  competent  jurisdiction.^ 

§  78.  In  the  absence  of  a  statute  requiring  a  naturalized 
citizen  to  produce  his  naturalization  papers,  and  especially 
where  it  is  alleged  that  such  papers  have  been  lost,  his  own 
oath  may  be  received  upon  the  question  of  his  right  to 
register,  and  such  oath  proves  jprima  facie  the  truth  of  the 
statements  sworn  to.* 

§  79.     It  is  not  necessary  that  the  record  of  proceedings 

*  Parol  evidence  to  prove  the  fact  of  naturalization  is  inadmissible; 
the  record  or  a  certified  copy  miist  be  produced.  State  v.  O'Hearne,  58 
Vt,  718;  6  AtL  Rep.,  606. 

*  Commonwealth  r.  Lee,  1  Brewst.,  373;  Commonwealth  v,  SheriflF, 
Id.,  183;  Commonwealth  v.  Leary,  Id.,  270. 

•People  V.  Walsh,  9  Abb.  (N.  Y.)  N.  Cas.,  465;  Preston  v.  Culbertson, 
58  Cal.,  198. 

<  People  V.  McNally,  9  Abb.  (N.  Y.)  N.  Cas.,  648;  and  see  §  287.  [It 
seems  that  where  the  clerk  has  neglected  to  record  the  order  of  nat- 
uralization, or  where  the  court  records  are  destroyed  by  fire,  parol 
proof  may  be  introduced  to  prove  the  fact  of  naturalization.  Lowry 
V.  White,  Mob.,  p.  623.  In  case  of  loss  or  destruction  of  record  of  nat- 
uralization, the  fact  may  be  established  by  secondary  evidence.  Kreitz 
t?.  Behrensmeyer,  125  111.,  141.  But  in  the  case  of  Lowry  v.  White,  supra, 
the  question  arose  whether  Mr.  White  was  eligible  to  election  under  the 
provisions  of  Section  2,  Article  I,  of  the  Constitution  of  the  United 
States,  requiring  a  Representative  to  have  been  a  citizen  of  the  United 
States  for  a  period  of  seven  years  prior  to  his  election.  No  record  of 
his  naturalization  was  offered  before  the  committee,  but  he  sought  to 
prove  such  naturalization  by  parol  evidence.  This  he  was  not  permitted 
to  do,  the  distinction  being  drawn  between  the  admission  of  parol  evi- 
dence to  prove  the  contents  of  a  court  record  and  the  proof  of  an  order 
of  court  never  recorded.] 


CHAP.  III.]  QUALIFICAIIONS   OF   V0TEE8.  59 

for  naturalization  shall  be  entirely  full  and  accurate  in  its 
statements  and  recitals.  These  constitute  no  part  of  the 
judgment.  Thus,  though  the  record  may  not  state  that  the 
court  heard  evidence  of  the  good  character  of  the  applicant, 
or  of  his  attachment  to  the  Constitution,  the  judgment  will 
not  be  impaired  by  this  omission.  It  will  be  presumed  that 
the  court  was  satisfied  upon  these  questions  by  suiBcient 
evidence.  Nor  is  it  necessary  that  there  should  be  a  formal 
order  of  the  court  admitting  the  applicant  to  citizenship. 
The  oath,  when  taken,  confers  the  rights  of  a  citizen.* 

[§  79a.  Where  no  record  of  naturalization  can  be  pro- 
duced, evidence  that  a  person  having  the  requisite  qualifica- 
tions to  become  a  citizen  did,  in  fact,  for  a  long  time  vote 
and  hold  office  and  exercise  the  rights  belonging  to  citizen- 
ship, is  sufficient  to  warrant  a  jury  in  inferring  that  he  has 
been  duly  naturalized  as  a  citizen.^] 

§  80.  Formerly  the  right  of  naturalization  was  limited  to 
any  alien  being  a  free  white  person ;  but  by  act  of  July  14, 
1870,'  the  privilege  was  extended  "  to  aliens  of  African  na- 
tivity and  to  persons  of  African  descent."  Subsequently, 
by  an  act  approved  February  18, 1875,*  the  law  was  amended 
so  as  to  "  apply  to  aliens  being  free  white  persons  and  to 
aliens  of  African  nativity,"  etc. ;  and  by  an  act  approved 
May  6,  1882,'  it  was  enacted  that  "  hereafter  no  State  court 
or  court  of  the  United  States  shall  admit  Chinese  to  citizen- 
ship." 

§  81.  It  has  been  earnestly  contended  that  an  Indian 
born  a  member  of  one  of  the  Indian  tribes  within  th*. 
United  States  which  still  exists  and  is  recognized  as  a  tribe 
by  the  government  of  the  United  States,  who  has  voluntarily 
separated  himself  from  his  tribe  and  taken  up  his  reciaence 
among  the  white  citizens  of  a  State,  but  who  has  iiot  been 

1  Matter  of  Coleman,  15  Blatchf.,  486;  Re  McCoppin,  f  bawy.,  630; 
United  States  v.  Reading,  18  How.,  1. 

2  [Boyd  V.  Thayer,  143  U.  S.,  135;  Hogan  v.  Kurtz,  94  XT.  ti.,  773;  Blight 
V.  Rochester,  9  Wheat.,  535.] 

»  16  Stat.,  256,  Sec.  7. 

*  18  Stat.,  318. 

6  Chap.  126,  Sec.  14,  22  Stat.,  51. 


60  ELECTIONS.  [chap.  IH. 

naturalized  or  taxed,  or  recognized  as  a  citizen  either  by  the 
United  States  or  by  the  State,  is  a  citizen  of  the  United 
States  within  the  meaning  of  the  first  section  of  the  Four- 
teenth Article  of  Amendments  of  the  Constitution,  which 
declares  that  "  all  persons  born  or  naturalized  in  the  United 
States  and  subject  to  the  jurisdiction  thereof  are  citizens 
of  the  United  States  and  of  the  State  wherein  they  reside." 
And  it  has  also  been  earnestly  contended  that  such  Indians 
were  entitled  to  vote  under  the  Fifteenth  Amendment  of  the 
Constitution,  which  provides  that  "  the  right  of  citizens  of 
the  United  States  to  vote  shall  not  be  denied  or  abridged 
by  the  United  States  or  any  State  on  account  of  race,  color, 
or  previous  condition  of  servitude."  But  these  propositions 
have  not  been  sustained  by  the  Supreme  Court  of  the  United 
States.  According  to  the  decision  of  that  court  in  Elk  v. 
Wilhins^  the  members  of  Indian  tribes  are  not  to  be  re- 
garded as  a  part  of  the  people  of  the  United  States,  but  as 
occupying  an  alien  and  dependent  condition,  and  therefore 
not  falling  within  the  terms  of  general  acts  of  Congress, 
unless  so  expressed  as  to  clearly  manifest  an  intention  to 
include  them.  It  was  accordingly  held  that  Indians  born 
members  of  their  tribes  were  not  made  citizens  by  the 
Fourteenth  Article  of  Amendment  above  quoted.^ 

1 113  U.  S.,  94. 

2  [Since  the  above  text  was  written,  the  right  of  such  Indians  to  citi- 
zenship has  been  expressly  conferred  by  United  States  statute.  In  the 
act  of  Congress  dated  February  8, 1887,  entitled  "An  act  to  provide  for 
the  allotment  of  lands  in  severalty  to  Indians  on  the  various  reserva- 
tions, and  to  extend  the  protection  of  the  laws  of  the  United  States 
and  the  Territories  over  the  Indians,  and  for  other  purposes,"  it  is 
enacted,  *'  That  upon  the  completion  of  said  allotments  and  the  patent- 
ing of  the  lands  to  said  allottees,  each  and  every  member  of  the  respect- 
ive bands  or  tribes  of  Indians  to  whom  allotments  have  been  made 
shall  have  the  benefit  of  and  be  subject  to  the  laws,  both  civil  and 
criminal,  of  the  State  or  Territory  in  which  they  may  reside;  and  no 
Territory  shall  pass  or  enforce  any  law  denying  any  such  Indian  within 
its  jurisdiction  the  equal  protection  of  the  law.  And  every  Indian 
born  within  the  territorial  limits  of  the  United  States  to  whom  allot- 
ments shall  have  been  made  under  the  provisions  of  this  act,  or  under 
any  law  or  treaty,  and  every  Indian  born  within  the  territorial  limits 
of  the  United  States  v.  ho  has  voluntarily  taken  up,  within  said  limits, 


OHAP.  III.]  QUALIFICATIONS   OF   VOTEBS.  61 

§  82.  The  five  years'  residence  required  by  the  law  prior 
to  naturalization  must  be  a  residence  within  the  United 
States.  It  is  not  enough  that  the  applicant  has  continued 
within  the  jurisdiction  of  the  United  States  during  that 
period ;  and  therefore  a  person  who  had  followed  the  sea 
constantly,  sometimes  in  the  merchant  and  at  other  times 
in  the  United  States  service,  but  had  had  no  residence  in 
any  part  of  the  United  States  other  than  by  employment  on 
board  of  American  vessels,  had  not  been  a  resident  within 
the  meaning  of  the  act.^ 

§  83.  An  applicant  for  naturalization  must  show  that  he 
has  behaved  as  a  man  of  good  moral  character  during  all  his 
residence  in  this  country.  It  has  accordingly  been  held  that 
evidence  of  his  conviction  for  a  crime  committed  since  he 
came  to  this  country  to  reside  will  bar  his  application,  not- 
withstanding it  occurred  more  than  five  years  previous  to 
the  application.' 

§  84.  Some  difference  of  opinion  has  been  expressed  as 
to  whether  under  the  provisions  of  section  4  of  the  act  of 
Congress  of  14th  of  April,  1802,'  the  minor  children  of 
parents  naturalized  since  the  passage  of  that  act  are  enti- 
tled to  the  rights  of  citizenship;  in  other  words,  whether 
that  section,  in  so  far  as  it  conferred  such  rights  upon  the 
minor  children  of  naturalized  citizens,  was  prospective.  That 
section,  omitting  such  portions  as  are  immaterial  to  this 
question,  may  be  quoted  as  follows :  "  That  the  children  of 

his  residence  separate  and  apart  from  any  tribe  of  Indians  therein,  and 
has  adopted  the  habits  of  civilized  life,  is  hereby  declared  to  be  a  citi- 
zen of  the  United  States,  and  is  entitled  to  all  the  rights,  privileges  and 
immunities  of  such  citizens,  whether  said  Indian  has  been  or  not,  by 
birth  or  otherwise,  a  member  of  any  tribe  of  Indians  within  the  terri- 
torial limits  of  the  United  States,  without  in  any  manner  impairing  or 
otherwise  affecting  the  right  of  any  such  Indian  to  tribal  or  other 
property."  In  the  case  of  State  v.  Norris,  37  Neb.,  299,  Indians  were 
held  to  be  qualified  electors  by  virtue  of  the  above  statute.] 

1  Anonymous,  4  N.  Y.  Leg.  Obs.,  98. 

2  Matter  of  Spenser,  5  Sawy.,  195;  18  Alb.  Law  Jour.,  153;  6  Reporter, 
293. 

»2  Stat,  at  L.,  155;  R  S.  U.  S.,  §  2172. 


62  ELECTIONS.  [chap.  IH. 

persons  duly  naturalized  *  *  *  being  under  the  age  of 
twenty-one  (21)  years  at  the  time  of  their  parents  being  so 
naturalized,  or  admitted  to  the  rights  of  citizenship,  shall, 
if  dwelling  in  the  United  States,  be  considered  as  citizens  of 
the  United  States." » 

It  has  been  supps)sed  by  some  that  this  section  applied 
only  to  such  minor  children  as  were  dwelling  within  the 
United  States  at  the  time  of  the  passage  of  the  act.*  And 
even  Chancellor  Kent  regarded  the  question  as  doubtful.' 
The  case  of  Campbeil  v.  Gordon^  decided  in  1810,  presented 
the  question  of  the  fdatus  of  a  minor  child  of  a  person  nat- 
uralized prior  to  the^  passage  of  the  act,  the  minor  not  being 
a  resident  of  the  United  States  at  the  time  of  the  naturaliza- 
tion, but  having  become  a  resident  thereof  prior  to  the  pas- 
sage of  the  act.     The  Court  said : 

"  This  act  declares  that  the  children  of  persons  duly  natu- 
ralized under  any  of  the  laws  of  the  United  States,  being 
under  the  age  of  twenty-one  (21)  years  at  the  time  of  their 
parents  being  so  naturalized,  shall,  if  dwelling  in  the  United 
States,  be  considered  as  citizens  of  the  United  States.  This 
la  precisely  the  case  of  Mrs.  Gordon.  Her  father  was  duly 
naturalized,  at  which  time  she  was  an  infant ;  but  she  came 
to  the  United  States  before  the  year  1802,  and  was  at  the 
time  when  this  law  passed  dwelling  within  the  United  States." 

From  what  is  here  said.  It  has  been  argued  that  the  words 
"  if  dwelling  in  the  United  States  "  qualify  the  whole  sec- 
tion, and  render  the  provision  which  declares  that  the  natu- 
ralization of  the  parent  shall  confer  the  rights  of  citizenship 
upon  his  minor  child,  retrospective  only.  [The  Supreme 
Court  has,  however,  in  Boyd  v.   Thayer^  settled  all  con- 

•  [The  naturalization  of  a  father  does  not  affect  the  citizenship  of  his 
minor  son,  who  did  not  come  to  this  country  until  after  his  father  had 
been  naturalized,    Behrensmeyer  v.  Kreitz,  135  IlL,  591.] 

2  Peck  V.  Young,  26  Wend.,  613,  622;  Vint  v.  Heirs  of  King  (U.  S.  Dist. 
Ct  West.  Dist  of  Virginia,  1853),  2  Am.  Law  Reg.  (0.  S.),  712. 

»  3  Kent's  Com.,  53. 

<6Cranch,  176. 

»[148U.  a,  135.] 


CHAP.  III.]  QUALIFIOATIONS   OF   VOTERS.  68 

jecture  on  this  question  by  holding  that  the  act  of  April  14, 
1802,  should  have  a  prospective  operation,  and  that  the  nat- 
uralization of  a  parent  after  the  passage  of  the  act  would 
confer  the  rights  of  citizenship  upon  his  minor  child  dwell- 
ing in  the  United  States  at  the  time  of  such  naturalization.] 
Other  courts  have  [also],  since  the  decision  of  Camjpbell  v. 
Gordon^  held  the  act  to  be  in  this  respect  prospective.^  In 
the  case  last  cited,  the  opinion  was  delivered  by  Mr.  Justice 
Harlan.  If  the  question  were  res  nova,  to  be  determined 
upon  the  terms  employed  in  the  statute,  it  would  seem  to  be 
easy  enough  of  solution.  Congress  was  enacting  a  perma- 
nent system  of  naturalization,  and  it  is,  therefore,  fair  to 
presume  that  the  provisions  of  the  act  were  intended  to  be 
prospective,  except  as  the  contrary  was  plainly  expressed. 
The  provision  in  question  is  not  by  its  terms  plainly  retro- 
spective only.  On  the  contrary,  it  may  very  well  be  con- 
strued to  be  both  retrospective  and  prospective.  The  lan- 
guage is :  "  The  children  of  persons  duly  naturalized  *  *  * 
being  under  the  age  of  twenty-one  (21)  years  at  the  time  of 
their  parents'  being  so  naturalized  *  *  *  shall,  if  dwell- 
ing within  the  United  States,  be  considered  as  citizens  of  the 
United  States."  This  language  is  quite  as  applicable  to  the 
future  as  to  the  past.  If  the  past  alone  had  been  intended. 
Congress  would  have  said,  "  the  children  of  persons  hereto- 
fore duly  naturalized,"  etc. ;  and  if  the  future  alone  had  been 
intended,  Congress  would  have  said, "  the  children  of  persons 
hereafter  duly  naturalized,"  etc. ;  but  inasmuch  as  a  perma- 
nent system  was  being  established,  designed  to  fix  the  status 
of  persons  then  in  being,  as  well  as  to  provide  for  the  natu- 
ralization of  those  who  should  come  after  them,  the  words 
were  so  chosen  as  to  be  both  retrospective  and  prospective. 
This  is  made  more  evident  by  the  terms  employed  in  the 
latter  clause  of  the  same  section,  which  declares  that  "  the 
children  of  persons  who  now  are  or  have  heen  citizens  of  the 

1  West  V.  West,  8  Paige,  433;  State  v.  Penny,  10  Ark.,  621;  O'Connor 
?7.  State,  9  Fla.,  215;  State  v.  Andriano,  92  Mo.,  70;  United  States  v. 
Kellar,  13  Fed.  Rep.,  82. 


64  ELECTIONS.  [chap.  in. 

United  States,  shall,  though  born  out  of  the  limits  and  juris- 
diction of  the  United  States,  be  considered  as  citizens  of  the 
United  States." 

§  85.  In  the  case  of  State  v.  Andriano,  supra,  the  Su- 
preme Court  of  Missouri  considered  very  fully  the  question 
of  the  force  and  effect  of  the  decision  of  the  Supreme  Court 
of  the  United  States  in  Camphell  v.  Gordon,  and  reached 
the  conclusion,  reversing  the  court  below,  that  there  is  noth. 
ing  in  the  opinion  in  the  latter  case  to  justify  the  claim 
that  the  Supreme  Court  intended  to  hold  the  fourth  section 
of  the  act  of  1802  to  have  been  only  temporary  and  retro- 
spective. 

[§  85a.  In  addition  to  the  method  of  naturalization  pre- 
scribed by  the  naturalization  laws  already  referred  to,  Con- 
gress may,  in  the  exercise  of  its  power  to  establish  an  uniform 
rule  of  naturalization,  provide  by  treaty  or  statute  for  the  col- 
lectiv©  naturalization  of  the  inhabitants  of  a  district  or  ter- 
ritory.* Notable  examples  of  the  exercise  of  this  power 
are  found  in  the  Jay  treaty,^  conferring  citizenship  upon 
British  subjects  residing  at  Detroit,'  the  treaty  of  Paris 
extending  citizenship  to  the  inhabitants  of  the  ceded  terri- 
tory,* the  treaty  with  Mexico  of  1848,'  by  which  Mexicans 
remaining  in  the  ceded  territory  were  to  be  deemed  citizens 
of  the  United  States,  and  the  enabling  acts  under  which  the 
State  governments  of  Ohio,  Michigan,  Indiana,  Illinois  and 
Nebraska  were  formed,  where  the  rights  of  citizenship  were 
conferred  upon  others  than  those  who  were  prior  thereto 
citizens  of  the  United  States.] 

[§  855.  The  statutory  provisions  with  reference  to  natu- 
ralization do  not  clearly  define  IYlq  status  of  minor  children 
of  fathers  who  have  declared  their  intention  to  become  cit- 

1  [Desbois  Case,  2  Martin,  185;  United  States  v.  Laverty,  3  Martin,  733; 
Boyd  V.  Thayer,  143  U.  S.,  135.] 

2  [8  Stat,  at  L.,  116,  117.] 

•  [Crane  v.  Reeder,  25  Mich.,  303.] 

<  [8  Stat  at  L.,  200-202;  Dred  Scott  v.  Sanford,  19  How.,  525.] 

» [9  Stat  at  L.,  930.] 


CHAP,  in.]  QUALIFICATIONS   OF   VOTEES.  66 

izens  of  the  United  States  but  who  have  failed  to  carry  out 
the  directions  prescribed  for  perfecting  their  naturalization, 
nor  do  they  suflSciently  define  the  status  of  such  children 
after  arriving  at  full  age  by  reason  of  such  declaration  of 
intention  where  the  father  neglects  to  perfect  his  natural- 
ization. It  has,  however,  been  recently  held  by  the  Supreme 
Court  of  the  United  States  in  Boyd  v.  Thayer ^^  that  minors 
acquire  an  inchoate  status  by  the  declaration  of  intention  by 
their  parents,  which  entitles  them,  upon  arriving  at  major- 
ity, to  elect  whether  they  will  repudiate  the  status  impressed 
upon  them  and  accept  allegiance  to  some  foreign  power  or 
accept  the  citizenship  which  has  been  initiated  for  them  by 
the  parent.  That  while  such  election  is  usually  made  by 
application  on  their  own  behalf,  this  is  not  absolutely  nec- 
essary, and  that  a  long-continued  exercise  of  the  rights  and 
performance  of  the  duties  of  citizenship  should  be  consid- 
ered as  an  equivalent  of  technical  compliance  with  the  rule. 

The  facts  in  this  case  were:  James  E.  Boyd  was,  in  l^o- 
vember,  1888,  elected  Governor  of  the  State  of  Nebraska, 
and  in  due  time  qualified  and  entered  on  the  duties  of  his 
oiRce.  In  January,  1891,  an  information  was  filed  in  the 
Supreme  Court  of  Nebraska  to  oust  him  from  the  ofiice  for 
the  reason  that  at  the  time  of  his  election  he  was  not  a  cit- 
izen of  the  United  States,  and  was  not  therefore  eligible  to 
the  oflQce  of  Governor. 

In  March,  1891,  the  Supreme  Court  of  Nebraska  entered  a 
judgment  of  ouster  against  Boyd,  and  the  relator,  Thayer,  was 
put  in  possession  of  the  office;  whereupon  the  case  was  taken 
to  the  Supreme  Court  of  the  United  States  by  writ  of  error. 

James  E.  Boyd  was  born  in  Ireland  of  Irish  parents  in 
1834,  and  brought  to  this  country  in  1844  by  his  father,  who 
settled  in  Ohio,  and  who,  in  1849,  declared  his  intention  to 
become  a  citizen  of  the  United  States. 

In  1855  the  son,  who  had  been  assured  by  his  father  that 
he  had  completed  his  naturalization  by  taking  out  his  sec- 

i[i43U.  a,  135,  na] 

6 


66  ELECTIONS.  [chap.  in. 

ond  papers  in  1854,  voted  in  Ohio  as  a  citizen.  In  1856  he 
removed  to  the  Territory  of  Nebraska.  Here  he  was  elected 
County  Clerk,  entered  the  military  service  of  the  United 
States  and  served  as  a  soldier ;  was  elected  a  member  of  the 
Nebraska  Legislature ;  served  as  a  member  of  the  State  Con- 
stitutional Convention;  was  elected  Mayor  of  the  City  of 
Omaha,  and  voted  at  every  National,  Territorial,  State  and 
Municipal  election  since  1856.  For  over  thirty  years  he  had 
actually  enjoyed  all  the  rights,  privileges  and  immunities  of 
a  citizen.     Upon  these  facts  the  Court  held  as  follows : 

"We  are  of  the  opinion  that  James  E.  Boyd  is  entitled 
to  claim  that,  if  his  father  did  not  complete  his  naturaliza- 
tion before  his  son  had  attained  majority,  the  son  cannot  be 
held  to  have  lost  the  inchoate  status  he  had  acquired  by  the 
declaration  of  intention,  and  to  have  elected  to  become  the 
subject  of  a  foreign  power,  but,  on  the  contrary,  that  the 
oaths  he  took  and  his  action  as  a  citizen  entitled  him  to 
insist  upon  the  benefit  of  his  father's  act,  and  placed  him  in 
the  same  category  as  his  father  would  have  occupied  if  he 
had  emigrated  to  the  Territory  of  Nebraska ;  that,  in  short, 
he  was  within  the  intent  and  meaning,  effect  and  operation 
of  the  acts  of  Congress  in  relation  to  citizens  of  the  Terri- 
tory, and  was  made  a  citizen  of  the  United  States  and  of 
the  State  of  Nebraska  under  the  organic  and  enabling  acts 
and  the  act  of  admission."  ] 

§  86.  Under  the  acts  of  Congress,  children  born  abroad, 
not  only  of  citizens  by  birth,  but  also  of  naturalized  citizens, 
are  citizens  of  the  United  States.^ 

I  Las  Portas  v.  De  La  Motta,  10  Rich,  Eq.  Rep.,  88.  [See  article  on 
"  Citizenship  by  Naturalization  in  the  United  States,"  24  Am.  Law  Rev., 
61&] 


CHAPTER  ly. 
QUALIFICATIONS  OF  YOTEES  —  Continued, 

S  37.    Residence  always  required. 

88.  Residence  defined. 

89.  Residence  at  United  States  Navy  Yard,  Arsenal,  or  the  like. 
90-91.    Residence  of  soldiers. 

93-93.    Residence  within  Indian  or  military  reservation. 

94-95.     Change  of  residence. 

96-100.  Temporary  removal. 

98.    Residence  and  domicile  synonymous. 

101-103.    Residents  of  students  at  college. 

102-103.    Importance  of  the  question  of  intention. 

104.  Paupers  abiding  in  a  public  almshouse. 
104a.  A  prison  not  a  place  of  residence. 

105.  The  intention  to  remain  at  a  particular  places 

106.  Rules  of  evidence. 

107.  Payment  of  tax. 
108-9-12-13.    Mode  of  assessing  tax. 

110.  Payment  by  agent. 

111.  Persons  exempted  from  payment  of  taxes. 

114.    Definition  of  phrase  "housekeepers  and  heads  of  families.* 

115-116.    Mental  capacity  required. 

117.    Rule  in  Kentucky  as  to  deaf  mutes. 

§  87.  As  residence  in  a  particular  place  and  for  a  definite 
period  of  time  is  required  by  the  laws  of  all  the  States  as  a 
qualification  for  voting,  it  is  important  to  note  the  adjudica- 
tions touching  this  qualification. 

§  88.  In  the  case  of  Williams  v.  Whiting,'^  the  question 
was  as  to  when  the  plaintiff  ceased  to  be  a  resident  of  Rox- 
bury,  and  became  a  resident  of  Dedham.  On  the  28th  day 
of  October,  1811,  being  then  a  resident  of  Roxbury,  "he  re- 
ceived," says  the  court,  "  an  appointment  which  rendered  it 
convenient,  if  not  necessary,  for  him  to  dwell  in  Dedham; 
and  he  then  began  to  prepare  for  his  removal;  from  that 

1 11  Mass.,  424. 


68  ELECTIONS.  [chap.  IT. 

time  until  the  12th  of  November  he  passed  almost  every  day 
in  Dedham,  where  he  transacted  his  business,  and  returned 
to  his  family  each  night,  except  three,  on  which  he  slept  in 
Dedham,  rather  by  accident  than  design ;  he  had  also  on  the 
29th  of  October  engaged  a  house  in  Dedham,  but  he  did  not 
occupy  it  until  the  12th  of  ]!^ovember,  on  which  day  he  re- 
moved his  family  and  became  domiciled  in  Dedham."  And 
the  court  held  upon  these  facts  that  he  remained  an  inhab- 
itant of  Koxbury  until  the  day  of  his  removal  with  his 
family. 

In  the  same  case  it  is  held  that  under  the  statute  of  Mas- 
sachusetts, to  entitle  a  person  to  vote  for  a  representative  in 
Congress  he  must  have  resided  one  whole  year  previous  to 
the  election  in  the  town  where  he  ofifers  to  vote,  and  that  it 
made  no  difference  that  the  person  offering  to  vote  had  re- 
moved inside  of  a  year  from  another  town  in  the  same  Con- 
gressional district.  The  Constitution  of  the  United  States 
requires  that  the  electors  for  representatives  in  Congress 
shall  have  the  qualifications  requisite  for  electors  of  the  most 
numerous  branch  of  the  State  Legislature,  and  one  of  these 
qualifications  in  Massachusetts  was  one  year's  residence  in 
the  place  of  voting.^ 

§  89.  Where  a  State  has  ceded  a  given  tract  of  land  to 
the  United  States  for  a  navy  yard,  arsenal  or  the  like,  and 
where  there  is  no  reservation  of  jurisdiction  to  the  State 
other  than  the  right  to  serve  civil  and  criminal  process  on 
such  lands,  persons  who  reside  upon  such  lands  do  not  ac- 
quire any  elective  franchise  as  inhabitants  of  such  State.^ 

1  [As  to  what  constitutes  residence,  see  Langhammer  et  aL  v.  Munter, 
80  Md.,  518;  Silvey  v.  Lindsay,  107  N.  Y.,  55;  Blankenship  v.  Israel,  133 
IlL,  514;  Moffett  v.  Hill,  131  IlL,  239;  Behrensmeyer  v.  Kjeitz,  133  IlL, 
691;  McLean  v.  Hobbs,  74  Md.,  116;  Berry  v.  Hull  (N.  M.),  30  Pac.  Rep., 
936;  Warren  v.  Board  of  Registration,  72  Mich.,  398;  2  L.  R  A.,  203,  and 
note;  Merrill  v.  Whitemire,  110  N.  C,  367;  Tullos  v.  Lane,  45  La.,  333; 
Kemp  V.  Owens,  76  Md.,  235;  State  v.  Dennison,  46  Kan.,  359;  Berry  v. 
Wilcox,  44  Neb.,  82.] 

2  Opinion  of  Judges,  1  Met  (Mass.),  580;  Sinks  n  Reese,  19  Ohio  St, 
306;  Commonwealth  v.  Clary,  8  Mass.,  72.    [Since  the  State  of  New  York 


CHAP.  lY.]  QUALIFICATIONS   OF   VOTEKS.  69 

But  this  rule  does  not  apply  to  persons  residing  upon  a 
tract  of  land  in  a  Territory  of  the  United  States  which  has 
been  reserved  or  set  apart  by  the  Executive  for  military 
purposes.  It  was  so  held  in  Burleigh  v.  Armstrong^  in 
which  case  the  committee  said  in  their  report : 

"  But  with  regard  to  the  election  held  within  the  military 
reservations  of  Fort  Sully  and  Fort  Randall  [or  the  Ellis 
precinct],  the  committee  have  reached  the  conclusion  that 
there  is  nothing  in  the  terms  of  the  organic  act,  nor  in  the 
general  policy  of  the  law,  forbidding  an  election  to  be  held 
at  such  places.  The  contestants  have  insisted  that  the  rule 
which  disqualifies  persons  from  voting  within  any  State,  who 
reside  within  forts  or  other  territory  to  which  the  title  and 
jurisdiction  has  been  ceded  by  the  State  to  the  Federal  Gov- 
ernment, applies  to  the  military  reservations  which  have 
been  designated  by  the  Executive  within  the  Territories 
belonging  to  the  United  States.  But  forasmuch  as  there 
is  no  conflict  of  sovereignty  between  the  Government  and 
the  Territory,  and  the  latter  holds  all  its  jurisdiction  in  sub- 
ordination to  the  controlling  power  of  Congress,  and  the 
military  reservations  are  not  permanently  severed  from  the 
body  of  the  public  lands,  but  are  simply  set  apart  and 
withheld  from  private  ownership  by  an  executive  order 
to  the  Commissioner  of  the  Land  Office,  and  may  be,  and 
often  are,  restored  to  the  common  stock  of  the  public  do- 
main when  the  occasion  for  their  temporary  occupancy  has 
ceased,  at  the  pleasure  of  Congress,  and  which  requires  no 
concurrent  act  of  any  State  authority  to  give  it  efficacy,  the 
residents  upon  such  reservations,  although  abiding  thereon 
by  the  mere  sufferance  of  the  United  States  authorities,  do 

has  ceded  to  the  United  States  the  territory  comprising  the  West  Point 
reservation,  reserving  nothing  except  the  right  to  serve  process  therein, 
such  territory  has  ceased  to  be  subject  to  State  jurisdiction,  or  to  be  a 
part  of  the  State;  and  persons  having  no  other  qualifications  as  resi- 
dents than  a  residence  in  such  territory  are  not  residents  of  the  State 
and  have  no  right  to  vote.  In  re  Town  of  Highlands,  23  N.  Y.  Sup., 
137.] 
I42d  Congress      [Smith,  89] . 


70  ELECTIONS.  [chap.  IV. 

not  in  any  just  sense  cease  to  be  inhabitants  or  residents  of  the 
Territory  within  which  such  military  reserve  ma}^  be  situate. 
Such  residents  seem  to  the  committee  to  have  that  same 
general  interest  in  the  welfare  of  the  community  in  which 
they  live,  and  the  same  right  to  vote  there,  as  any  of  the 
workmen  at  the  arsenal  or  navy  yard  in  Washington  City, 
who  may  be  allowed  to  sojourn  within  their  limits,  have  to 
vote  at  elections  within  the  District  of  Columbia  for  officers 
of  its  territorial  government,  or  for  a  delegate  in  Congress 
from  that  District." 

§  90.  The  fact  that  an  elector  is  a  soldier  in  the  army  of 
the  United  States  does  not  disqualify  him  from  voting  at  his 
place  of  residence ;  but  he  cannot  acquire  a  residence,  so  as 
to  qualify  him  as  a  voter,  by  being  stationed  at  a  military 
post  whilst  in  the  service  of  the  United  States.^  And  a  stat- 
ute attempting  to  authorize  soldiers  to  vote  out  of  the  State 
is  unconstitutional.^ 

§  91.  Soldiers  in  the  United  States  army  cannot  acquire 
a  residence  by  being  long  quartered  in  a  particular  place, 
and  though  upon  being  discharged  from  the  service  they  re- 
main in  the  place  where  they  have  previously  been  quar- 
tered, if  a  year's  residence  in  that  place  is  required  as  a 
qualification  for  voting,  they  must  remain  there  one  year 
from  the  date  of  discharge  before  acquiring  the  right  to 
vote.' 

§  92.  Persons  residing  within  the  bounds  of  an  Indian 
reservation,  in  the  Territory  of  Dakota,  have  no  right  to 
vote  at  an  election  for  delegate  in  Congress.  But  it  is  other- 
wise with  persons  residing  within  the  limits  of  a  military 
reservation.  It  was  so  held  by  the  House  of  Representa- 
tives in  the  case  of  Burleigh  and  SpinJc  v.  Armstrong} 

§  93.  The  House  of  Representatives  of  the  United  States 
has  frequently  held  that  residents  upon  an  Indian  reserva- 

1  People  V.  Riley,  15  Cal.,  48;  Hunt  v.  Richards,  4  Kan.,  549;  Biddle  v. 
Wing,  CI.  &  H.,  504;  Re  Election  Law,  9  PhiL,  497. 

2  Day  V.  Jones,  31  Cal.,  261;  Twitchell  v.  Blodgett,  13  Mich.,  137. 
•Biddle  and  Richard  v.  Wing,  CL  &  H.,  504,  5121 

«  42d  Congress     [Smith,  89] . 


CHAP,  rv.]  QUALIFICATIONS   OF  VOTERS.  71 

tion  have  no  right  to  vote.^  In  the  latter  case  the  House 
sustained  this  doctrine  against  the  report  of  the  Committee. 
These  cases,  however,  were  all  from  the  Territory  of  Ne- 
braska, and  were  decided  upon  the  ground  that  the  organic 
act  of  the  Territory  provided  that  "  territory  occupied  as  an 
Indian  reservation  shall  not  be  considered  a  part  of  Nebraska 
Territory,  but  that  ail  such  territory  shall  be  excepted  out 
of  the  boundaries  until,  by  arrangement  between  the  United 
States  and  the  Indians,  the  title  of  the  latter  shall  be  ex- 
tinguished." A  similar  provision  will  be  found  in  the  organic 
acts  of  most  and  probably  of  all  the  Territories. 

§  94.  "We  have  already  seen  that  a  residence  within  a 
place  over  which  the  United  States  has  exclusive  jurisdic- 
tion is  not  a  residence  within  the  State,  county  or  township 
for  voting  purposes.  It  has,  however,  been  held  in  Ohio 
that  a  constitutional  requirement  of  residence  for  a  pre- 
scribed time  within  the  State,  county  or  township,  as  a  quali- 
fication for  voters,  is  satisfied  if,  at  the  time  of  the  election, 
the  voter  has  a  residence  within  the  proper  political  division, 
and  has  resided  there  for  the  prescribed  length  of  time, 
although  there  may  have  been  a  change  of  jurisdiction,  as 
where,  during  part  of  the  time,  the  United  States  has  had 
exclusive  jurisdiction  over  the  place,  but  has  ceded  it  back 
to  the  State.^ 

§  95.  Electors  cannot  be  residents  of  one  district  and 
vote  in  another ; '  and  it  has  therefore  been  held  that  a  statute 
transferring  voters  from  one  district  to  another  by  a  change 
of  city  boundaries  is,  in  e£Pect,  an  alteration  of  the  district, 
as  much  as  it  would  be  if  the  same  result  were  brought 
about  in  a  different  way.* 

1  Daily  v.  Estabrook,  1  Bart.,  299;  Morton  v.  Daily,  lA,  402;  Bennett 
V.  Chapman,  Id.,  204. 

2Renner  v.  Bennett,  21  Ohio  St.,  451;  [Yonkins'  Contested  Election,  2 
Pa.  County  Ct.,  550]. 

3  [State  V.  Alder,  87  Wis.,  554.] 

*  People  V.  Holihan,  29  Mich.,  116.  See  Perkins  v.  Carraway,  59  Miss., 
222. 


72  ELECTIONS.  [chap.  TV. 

§  96.  "Where  a  voter  removed  from  the  State  of  Illinois 
to  another  State  with  his  family,  with  intent  not  to  remain 
there  unless  suited,  and  returned  because  not  satisfied  to 
make  his  removal  permanent,  never  having  fully  decided  to 
change  his  residence,  he  was  held  not  to  have  lost  his  right 
to  vote  in  Illinois.^ 

A  person  who  removes  with  his  family  from  one  town  to 
another  does  not  retain  the  right  to  vote  in  the  former  until 
he  acquires  it  in  the  latter.* 

§  97.  Domicile  or  residence  in  a  legal  sense  is  determined 
by  the  intention  of  the  party ; '  he  cannot  have  two  homes 
at  the  same  time ;  when  he  acquires  the  new  home  he  loses 
the  old  one;  but  to  effect  this  change  there  must  be  both 
act  and  intention.* 

"When  a  man  removes  with  his  family  into  a  county  with 
the  intention  to  make  that  his  residence,  that  is  the  county 
where  he  should  vote  so  long  as  his  family  remains  there, 
though  he  may  himself  pass  his  time  and  engage  in  business 
or  work  in  another  county.'  The  temporary  absence  of  a 
person  or  his  family  from  his  usual  place  of  residence,  though 
extending  over  a  series  of  years,  does  not  necessarily,  with- 
out regard  to  his  intention,  cause  him  to  lose  his  residence 

1  Beardstown  v.  Virginia,  81  IlL.  541.  [The  statutes  of  Maryland  pro- 
vide that  all  persons  who  shall  vacate  or  remove  from  the  place  of 
their  actual  abode  within  the  State,  and  shall  take  up  their  abode  out 
of  the  State,  shall  be  conclusively  presumed  to  have  lost  their  residence 
in  the  State,  unless  at  or  within  ten  days  after  the  time  of  their  re- 
moval they  shall  make  an  aflBdavit  before  the  clerk  of  the  Circuit 
CJourt  for  the  county  from  which  they  shall  so  remove  that  they  do 
not  intend  to  change  their  legal  residence,  but  that  they  have  a  fixed 
and  definite  purpose  to  return  to  the  State  on  or  before  six  months  pre- 
ceding the  next  election  in  November.  (Acts  of  1890,  Ch.  513,  Sec.  14) 
This  statute  construed  in  Bowling  v.  Turner,  78  Md.,  595,  and  in  Ster- 
ling V.  Homer,  74  Md.,  573.] 

^McDaniel's  Case,  3  Pa.  L.  J.,  310;  Thompson  v.  Ewing;  1  Brewst, 
103;  Infra,  %  64. 

'  [Young  V.  Simpson  (Colo).,  42  Pac.  Rep.,  666.J 

♦State  V.  Frest,  4  Harr.,  558;  McDaniel's  Case,  3  Pa.  L.  J.,  810;  Stur- 
geon V.  Korte,  34  Ohio  St,  625;  Johnson  v.  People,  94  IlL,  505t 

»  People  V.  Holden,  28  CaL,  124. 


CHAP.  IV.]  QUALIFICATIONS   OF   VOTERS.  73 

or  deprive  him  of  his  rights  as  an  elector.^  Residence  once 
acquired,  by  birth  or  habitancy,  is  not  lost  by  a  temporary 
absence  for  pleasure  or  business,  or  while  attending  to  the 
duties  of  a  public  office,  with  an  intention  of  returning.^ 

§  98.  Residence,  within  the  meaning  of  the  Constitution 
of  Pennsylvania,  as  applied  to  the  qualification  of  an  elector, 
means  the  same  thing  as  domicile  —  the  place  where  a  man 
establishes  his  abode,  makes  the  seat  of  his  property,  and 
exercises  his  civil  and  political  rights.'  Such  residence  must 
have  been  with  intent  to  become  a  citizen  of  the  State  and 
to  abandon  the  citizenship  he  may  have  had  in  another 
State.  Mere  residence  for  the  purpose  of  business  or  pleas- 
ure, unaccompanied  with  an  intention  to  abandon  the  former 
citizenship,  is  not  sufficient.*  To  constitute  residence  there 
must  be  an  intention  to  remain ;  but  this  intention  is  entirely 
consistent  with  a  purpose  to  remove  at  some  future  indefinite 
time.' 

§  99.  It  was  held  by  the  Supreme  Court  of  Massachusetts 
in  1814,  that  a  person  having  a  permanent  home  in  one  town 

1  Harbaugh  v.  Cicott,  33  Mich.,  241. 

2  State  V.  Judge,  etc.,  13  Ala.,  805;  Lincoln  v.  Hapgood,  11  Mass.,  850; 
Dennis  v.  State,  17  Fla.,  389;  Harbaugh  v.  Cicott,  33  Mich.,  241;  Beards- 
town  V.  Virginia,  81  111.,  541;  State  v.  Grizzard,  89  N.  C,  115. 

3  Chase  v.  Miller,  41  Pa.  St.,  404.  See  also  Sturgeon  v.  Korte,  34  O.  St., 
625. 

4  [Thompson  v.  Warner  (Md.),  34  Atl.  Rep.,  830;  Lower  Oxford  Con. 
Elec,  2  Pa.  County  Ct.,  323.  One  in  the  employment  of  the  United 
States  mail  service,  whose  established  home  is  with  his  father,  cannot, 
by  reason  of  his  boatding  at  a  hotel  in  another  township,  vote  there. 
Lankford  v.  Gebhart,  130  Mo.,  621.] 

» Miller  v.  Thompson,  1  Bart.,  118;  Pigott's  Case,  Id.,  463;  State  v. 
Aldrich,  14  R.  L,  171.  One  who  lives  in  a  boat  alongside  a  pier  may  ac- 
quire a  residence  for  voting  purposes.  Re  Collins,  64  How.  Pr.  (N.  Y.), 
63;  [Pedigo  v.  Grimes,  113  Ind.,  148.  Residence  does  not  mean  one's 
permanent  place  of  abode  where  he  intends  to  live  all  of  his  days,  or 
for  an  indefinite  or  unlimited  time.  Nor  does  it  mean  one's  residence 
for  a  temporary  purpose,  with  the  intention  of  returning  to  his  former 
residence  when  that  purpose  shall  have  been  accomplished,  but  means 
one's  actual  home  in  the  sense  of  having  no  other  home,  whether  he 
intends  to  reside  there  permanently  or  for  a  definite  or  indefinite  length 
of  time.    Shaeffer  v.  Gilbert,  73  Md.,  66]. 


74  RLECTIONS.  [chap.  IV, 

within  that  State,  and  being  a  legal  voter  in  such  town,  is 
not  disqualified  by  a  temporary  absence  in  another  town, 
and  being  there  admitted  to  vote.^  The  general  doctrine 
laid  down  in  this  case  is  doubtless  correct.^  If  a  person  is 
clearly  a  resident  of,  and  a  legal  voter  in,  one  place,  and  is 
improperly  and  illegally  permitted  to  vote  at  another,  that 
fact  alone  will  not  disqualify  him  from  continuing  to  vote 
at  the  place  of  his  actual  residence.  But  it  is  proper  to  ob- 
serve in  this  connection  that,  if  there  is  any  doubt  as  to 
which  of  two  places  is  the  home  or  residence  of  a  voter,  the 
fact  that  he  has  within  a  recent  period  voted  at  one  of  such 
places  would  be  very  strong  evidence  that  he  had  decided 
for  himself  to  make  his  home  where  he  cast  his  vote.  And 
if  a  person  is  residing  at  a  particular  place,  and  there  is 
doubt  as  to  whether  he  is  residing  there  temporarily  and 
claiming  another  place  as  his  home,  if  he  claims  and  exer- 
cises the  right  to  vote  at  the  place  where  he  is  for  the  time 
residing,  that  fact  ought  to  be  regarded  as  evidence  well  nigh 
conclusive  that  he  has  abandoned  his  former  residence  and 
determined  to  make  his  home  where  he  claims  his  vote. 
The  question  of  residence  or  domicile  is  a  question  largely 
of  intention,  and  the  fact  of  voting  is  very  strong  evidence 
of  the  voter's  intention  to  claim  a  domicile  at  the  place  o^ 
voting. 

§  100.  The  Constitution  of  Pennsylvania  requires,  among 
other  qualifications  of  a  voter,  that  he  shall  have  resided 
one  year  in  the  State,  "  and  in  the  election  district  where 
he  offers  to  vote,  ten  days  immediately  preceding  such  elec- 
tion." 

It  was  held  in  McJDanieVs  Case '  that  an  election  district 
was  any  part  of  a  city  or  county  having  fixed  boundaries 
within  which  the  citizens  residing  therein  must  vote,  as,  for 
example,  a  ward  in  the  city  of  Philadelphia.  It  was  also 
held  that  a  person  who  removed  from  one  election  district 

1  Lincoln  u  Hapgood,  11  Mass.,  350. 

2  [O'Hair  v.  Wilson,  124  111.,  351;  Carter  v.  Putnam,  141  lU.,  133.] 
33  Pa.  I-.  J.,  310;  S.  C,  Bright.  Elec.  Cas.,  23a 


CHAP.  IV.]  QUALIFICATIONS    OF   VOTERS.  75 

to  another,  within  the  ten  days  immediately  preceding  an 
election,  lost  his  right  to  vote  in  the  district  removed  from, 
and  did  not  gain  a  right  to  vote  at  that  election  in  the  dis- 
trict removed  to.  The  right  to  vote  in  the  former  does  not 
continue  until  the  same  right  is  acquired  in  the  latter,  but  is 
lost  as  soon  as  the  removal  is  complete.  There  is  therefore 
always  a  period  following  a  change  of  residence  during 
which  the  citizen  has  no  right  to  vote  at  any  place.  It  is 
sometimes  laid  down  as  a  general  proposition,  that,  in  case 
of  a  removal  by  a  person  from  one  place  to  another,  his  first 
residence  is  not  lost  until  the  second  is  acquired.  And  this 
is  true  for  some  purposes,  but  not  for  the  purpose  of  deter- 
mining the  right  of  such  person  to  vote.  That  right  ends 
in  the  place  removed  from,  as  soon  as  the  voter  completes 
his  removal.^  It  is  acquired  in  the  place  removed  to,  only 
after  such  a  residence  therein  as  the  law  requires ;  and  as  no 
man  can  have  two  residences  at  the  same  time,  it  follows 
that  he  cannot  acquire  the  right  to  vote  in  the  new,  by  re- 
siding there,  until  he  has  ceased  to  have  a  residence  in  the 
old.2 

§  101.  It  will  be  found  from  an  examination  of  the  au- 
thorities, and  from  a  full  consideration  of  the  subject,  that 
the  question  whether  or  not  a  student  at  college  is  a  hona 
fide  resident  of  the  place  where  the  college  is  located  must 
in  each  case  depend  upon  the  facts.'  He  may  be  a  resident 
and  he  may  not  be.  Whether  he  is  or  not  depends  upon  the 
answer  which  may  be  given  to  a  variety  of  questions,  such 
as  the  following:  Is  he  of  age?  Is  he  fully  emancipated 
from  his  parents'  control?*    Does  he  regard  the  place  where 

1  Preston  u  Culbertson,  58  Cal.,  198. 

2  Thompson  v.  Ewing,  1  Brewst.,  103;  ante,  §97. 

8  Cessna  v.  Myers,  Smith,  60;  Putnam  v.  Johnson,  10  Mass.,  488; 
Farlee  v.  Runk,  1  Bart,  87;  Opinion  of  Judges,  5  Met.,  587;  Cushing's 
Elec.  Cas.,  436;  [Schaflfer  v.  Gilbert,  73  Md.,  66;  Posey  u  Parrett,  Row., 
187;  Hall  v.  Schoenecke,  128  Mo.,  661]. 

*  [Where  a  person  of  mature  years  severs  his  connection  with  the 
home  of  his  parents,  relying  upon  his  own  efforts  and  means,  and  with 
no  fixed  determination  as  to  future  residence,  being  otherwise  qualified. 


76  ELECTIONS.  [chap.  IV. 

the  college  is  situated  as  his  home,  or  has  he  a  home  else- 
where to  which  he  expects  to  go,  and  at  which  he  expects  to 
reside  ?  In  a  word,  it  is  necessary  from  a  survey  of  all  the 
facts  to  determine  whether  while  at  college  he  is  at  his  home, 
his  residence,  or  temporarily  absent  from  it.^ 

A  student  residing  at  college,  having  no  intention  of  re- 
maining permanently,  has  no  residence  there  and  no  right  to 
vote.' 

§  102.  In  accordance  with  the  rule  that  residence  is  de- 
termined largely  as  a  question  of  intention,  it  has  been  held 
that  the  undergraduates  of  a  college  who  are  free  from  par- 
ental control  and  regard  the  place  where  the  college  is  situ- 
ated as  their  home,  having  no  other  to  which  to  return  in 
case  of  sickness  or  domestic  affliction,  are  residents  of  the 
place  where  the  college  is  situated  and  entitled  to  vote 
therein.*  But  the  simple  fact  that  such  students  paid  a  road 
tax  in  labor  while  in  attendance  at  the  college  should  have 
no  weight  in  determining  the  question  of  residence,  where 
the  law  under  which  such  road  labor  was  performed  did  not 
require  residence  to  render  the  party  liable,  but  simply  in- 
habitancy.* 

§  103.  Although  it  may  be  provided  by  statute  or  consti- 
tutional provision  that  residence  of  a  student  at  a  seminary 
of  learning  shall  not  entitle  him  to  the  right  of  suffrage  at 
the  place  where  such  seminary  is  situated,  yet  he  may  gain 
a  right  to  vote  there  if  he  Ixmafide  intends  to  make  that 
place  his  permanent  abode  independent  of  his  sojourn  as  a 
student.* 

he  is  a  legal  voter  wherever  he  may  be  attending  college.  Wortlington 
V.  Post,  Mob.,  647.J 

iSee  Dale  v.  Irwin,  78  111.,  170;  [Pedigo  v.  Grimes,  113  Ind.,  148,  and 
note  to  same  case  in  20  Am.  &  Eng.  Corp.  Cases,  43]. 

2  Vanderpool  v.  O'Hanlon,  53  la.,  246;  S.  C,  36  Am.  Rep.,  216;  Sanders 
V.  Getchell,  76  Me.,  158;  S.  C,  49  Am.  Rep.,  606;  [Goodman  v.  Bainton,84 
Hun,  53;  Campbell  v.  Morey,  Mob.,  215]. 

5  [Berry  v.  Wilcox,  44  Neb.,  82.] 

*  Dale  V.  Irwin,  78  III,  170. 

•Sanders  v.  Getchell,  76  Me.,  158;  S.  C,  49  Am.  Rep.,  606;  [In  re  Ward, 


CHAP.  IV.]  QUALIFICATIONS   OF   VOTEKS.  Y7 

[§  104.  It  has  been  held  in  a  number  of  early  contested 
elections  in  Congress  that  in  the  absence  of  statute  regula- 
tions a  pauper  abiding  in  a  public  almshouse,  locally  situ- 
ated in  a  different  district  from  that  where  he  dwells  when 
he  becomes  a  pauper,  and  by  which  he  is  supported,  does 
not  acquire  a  residence  in  the  almshouse  for  the  purpose  of 
voting.^  But  in  the  decision  in  the  case  of  Cessna  v.  MyerSy 
supra,  a  different  view  was  expressed,  and  in  the  later  case 
of  Le  Moyne  v.  Farwell  ^  all  the  cases  in  the  House  of  Rep- 
resentatives are  reviewed,  and  the  rule  is  laid  down  that 
paupers  at  a  poor-house  do  acquire  there  a  residence  Avithin 
the  meaning  of  the  election  laws  prescribing  a  residence  as 
a  requisite  to  suffrage.] 

[§  104«.  It  has  been  held  by  the  Court  of  Appeals  of  New 
York  that  a  vagrant  committed  to  prison  on  his  own  appli- 

20  N.  Y.  Sup.,  606;  Stewart  v.  Kyser,  105  Cal.,  459.  A  student's  inten- 
tion to  change  his  residence  must  be  manifested  by  acts  independent 
of  his  presence  as  a  student  in  the  new  locality.  Matter  of  Garvey,  147 
N.  Y.,  117.  A  constitutional  provision  of  this  character  is  not  retroact- 
ive, and  an  inmate  of  an  almshouse  who  had  gained  a  residence  and 
voted  in  the  district  prior  to  the  adoption  of  such  a  provision  does  not 
thereby  lose  his  right  to  vote.    In  re  Batterman,  14  Misc.  Rep.,  213.] 

iMonrce  v.  Jackson,  1  Bart.,  98;  Covode  v.  Foster,  2  Bart.,  600;  Tay- 
lor V.  Reading,  2  Bart.,  661;  Dale  v.  Irwin,  78  IlL,  170;  Be  Election  Law, 
9  Phila.,  497.  A  party  does  not  forfeit  his  residence  in  a  precinct  in 
which  he  was  a  voter  merely  by  becoming  a  county  charge  and  an  in- 
mate of  the  poor-house.     Dale  v.  Irwin,  78  111.,  170. 

2[Le  Moyne  v.  Farwell,  Smith,  406;  Stewart  v.  Kyser,  105  Cal.,  459. 
Domicile  in  sailors'  and  soldiers'  home  is  not  residence.  Silvey  v.  Lind- 
say, 107  N.  Y.,  55.  The  fact  that  a  student,  for  the  purpose  of  pursuing 
his  studies,  applies  for  and  obtains  aid  in  the  nature  of  a  loan  from  his 
college,  in  no  way  makes  him  an  applicant  for  public  aid.  In  re  Ward, 
20  N.  Y.  Sup.,  606.  Where  a  soldier,  at  the  time  of  his  admission  as  an 
inmate  of  the  Michigan  Soldiers'  Home,  has  a  legal  residence  in  a  town- 
ship other  than  that  in  which  the  home  is  situated,  he  does  not  lose 
such  residence  while  he  remains  such  inmate  and  is  not  a  legal  voter 
in  the  latter  township.  Wolcot  v.  Holcomb,  97  Mich.,  361 ;  People  v. 
Hanna,  98  Mich.,  517.  The  inmate  of  a  county  infirmary  who  has 
adopted  the  township  in  which  the  infirmary  is  situated  as  his  place  of 
residence,  having  no  family  elsewhere,  is  entitled  to  vote  in  the  town- 
ship where  the  infirmary  is  situated-  Sturgeon  v.  Korte,  34  Ohio  St.,  525.] 


78  ELECTIONS.  [chap.  IV. 

cation  and  being  maintained  at  public  expense  cannot  gain 
a  residence  in  the  prison  for  the  purpose  of  voting,  although 
not  strictly  confined,  but  permitted  to  go  in  and  out  on  er- 
rands.^] 

§  105.  For  a  thorough  discussion  of  the  question  of  resi- 
dence, as  applied  to  voters,  see  the  report  of  the  Committee 
of  Elections  in  the  House  of  Representatives  of  the  Forty- 
second  Congress,  in  the  case  of  Cessna  v.  Myers,  to  be  found 
in  full  in  the  appendix  to  this  volume.  This  report  presents 
forcibly  and  clearly  the  important  consideration  that  no 
definition  of  "  residence  "  or  "  domicile  "  can  be  made  suffi- 
ciently comprehensive  to  apply  to  all  conceivable  cases  and 
circumstances.  Tests  which  are  satisfactory  in  some  cases 
cannot  be  applied  as  inflexible  rules  in  aU,  Thus,  it  is  a 
general  rule  that  in  order  to  gain  a  residence  in  a  particular 
place  a  man  must  fix  his  domicile  there  with  the  intention 
of  remaining  an  indefinite  time,  and  with  no  fixed  purpose 
of  making  that  place  a  temporary  abiding  place  only.  But 
there  are  persons  whose  lives  are  necessarily  migratory, 
whose  business  is  to  travel  from  place  to  place.  As,  for  ex- 
ample, a  Methodist  minister,  who,  by  the  law  of  his  church, 
cannot  remain  permanently  and  pursue  his  calling  in  any 
one  place ;  or  a  school-teacher  who  resides  wherever  he  can 
get  employment,  and  removes  when  his  business  requires  it; 
or  a  laborer  who  lives  where  there  is  an  iron-furnace,  or  a 
coal-mine,  or  a  railroad  in  process  of  construction,  to  furnish 
him  employment  and  a  livelihood,  and  when  these  fail  him 
in  one  place,  goes  to  another.  With  reference  to  these  and 
other  similar  classes  a  different  rule  must  be  applied.  As  to 
what  that  rule  is,  nothing  need  be  added  to  what  is  said  in 
Cessna  v.  Myers;  and  let  it  be  understood  that  the  authori- 
ties cited  in  this  chapter  upon  the  general  question  of  resi- 
dence are  to  be  read  with  reference  to  the  qualifications 
expressed  in  that  report.* 

1  [People  V.  Cady,  143  N.  Y.,  100.] 

*[And  see,  to  the  same  effect,  Kreitz  v.  Behrensmeyer,  125  IIL, 
141.] 


OHAP.  rV.]  QUALIFICATIONS   OF   VOTERS.  79 

§  106.  The  rule  that  every  man  is  presumed  to  have  a 
fixed  domicile  somewhere  applies  as  well  to  a  single  as  to  a 
married  man ;  and  though  the  domicile  of  the  former  may 
be  more  difficult  to  find  and  prove,  yet  the  rules  of  evidence 
by  which  it  is  ascertained  are  the  same  as  those  applicable 
in  determining  the  domicile  of  other  persons.^  And  in  the 
same  case  it  was  held  that  upon  a  question  of  domicile,  evi- 
dence of  the  conduct  or  declarations  of  a  party,  afterwards 
as  well  as  before  a  given  day,  may  be  received  to  ascertain 
his  intentions  as  to  his  place  of  abode  on  that  day.  This  is 
upon  the  ground,  of  course,  that  the  question  of  domicile 
generally  turns  upon  the  question  of  intent^  and  thus  can,  in 
the  nature  of  the  case,  be  shown  only  by  circumstances. 

§  107.  Under  a  constitutional  provision  requiring,  as  a 
qualification  for  voting,  the  payment  of  a  tax  which  had 
been  assessed  at  least  six  months  before  the  election,  it  has 
been  held  that  an  assessment  upon  the  voter  individually, 
six  months  before  the  election,  was  necessary,  and  that  it  is 
not  enough  that  it  be  laid  upon  the  county  of  which  he  is  a 
resident.  It  seems,  however,  that  it  is  not  necessary  that  it 
be  a  personal  or  poll  tax.  It  is  suflficient  if  it  be  a  tax  as- 
sessed either  upon  his  person  or  his  property  within  the  time 
required.^ 

§  108.  The  Constitution  of  Massachusetts  in  force  in 
1837  vested  the  right  to  vote  "  in  every  male  citizen  other- 
wise qualified,  who  shall  have  paid,  by  himself  or  his  master, 
parent  or  guardian,  any  State  or  county  tax,  which  shall 
within  two  years  next  preceding  the  election  in  question 
have  been  assessed  upon  him  in  any  town  or  district  in  this 
Commonwealth."  Under  this  clause  it  was  held  that  after 
any  general  assessment  of  a  tax  has  been  made  by  the  assess- 
ors of  a  town,  and  committed  to  the  proper  officer  for 
collection,  and  before  another  tax  is  committed  to  the  assess- 

1  French  n  Lightly,  9  Ind.,  478. 

2Catlin  V.  Smith,  2  Serg.  &  R.,  267;  {In  re  Hughes,  3  Lack.  Jur.,  313; 
In  re  Contested  Elec.  of  White,  4  Pa.  Dist.  Bep.,  363;  Maddendorf's  Case, 
4  Pa.  Dist.  Rep.,  78]. 


80 


ELECTIONS.  [chap.  IV. 


ors  to  assess,  they  have  no  authority  to  assess  a  poll  or 
other  tax  on  any  person  for  the  purpose  of  enabling  him  to 
vote  at  an  election,  nor  is  any  person,  on  the  payment  of  a 
tax  so  assessed  upon  him,  qualified  to  vote,  under  the  above 
constitutional  provision.^ 

§  109.  In  some  of  the  States  it  is  provided  by  constitu- 
tional provision  that,  to  entitle  a  man  to  vote,  he  must,  as  a 
prerequisite,  have  paid,  within  two  years  next  preceding  the 
time  of  the  election  at  which  he  claims  a  right  to  vote,  a 
State  or  county  tax.  In  Massachusetts  it  has  been  held 
under  a  provision  of  this  character  that  the  payment  of  a 
State  tax  within  the  proper  period  of  time,  by  one  who  is  ir 
other  respects  a  qualified  voter,  entitles  him  to  vote,  although" 
such  tax  was  illegally  assessed  upon  him.^ 

§  110.  Though  a  tax  which  is  assessed  upon  one  person  ii 
paid  for  him  by  another  without  his  previous  authority,  yet 
if  he  recognizes  the  act,  and  repays  or  promises  to  repay  the 
amount  on  the  ground  that  such  person  acted  as  his  agent, 
he  thereby  acquires  the  same  right  to  vote  as  if  he  had  paid 
the  tax  with  his  own  hand.' 

1  Opinion  of  Judges,  18  Pick.,  575.  As  to  the  payment  of  taxes  as  a 
qualification  for  voting,  see,  also,  Re  Voting  Laws,  12  R  I.,  586;  State 
V.  Livingston,  1  Houst.  Grim.  C,  Del.,  109.  [In  drainage  districts  where 
the  right  of  voting  upon  drainage  questions  is  conferred  upon  "  land 
owners,"  deeds  of  conveyance,  while  colorably  giving  title,  not  made, 
however,  for  the  purpose  of  changing  ownership  in  the  land,  but  merely 
for  the  purpose  of  giving  the  grantees  the  apparent  right  to  vote,  and 
with  an  implied  understanding  that  they  should  vote  as  desired  by  the 
grantors,  do  not  make  the  holders  of  such  deeds  legal  votera  Murdock 
V.  Weimer,  55  TIL  App.,  527.] 

2  Humphrey  v.  Kingman,  4  Met.,  162. 

'  Humphrey  v.  Kingman,  supra;  Draper  v.  Johnson,  Clark  &  Hall,  702. 
Taxes  required  to  be  paid  by  the  voter  may  be  paid  by  his  agent,  and  a 
subsequent  ratification  is  equivalent  to  previous  authority.  Re  District 
Attorney,  11  Phila.,  645;  Gillin  v.  Armstrong,  12  Phila,,  626.  [An  act 
of  the  Legislature  of  Florida  which  requires  the  voter  to  himself  pay 
his  poll-tax  before  participating  in  a  city  election  does  not  deprive  him 
of  the  privilege  of  paying  the  same  by  an  agent.  State  v.  Dillon,  32 
Fla.,  548.] 


CHAP.  IV.]  QUALIFICATIONS   OF   VOTERS.  81 

§  111.  In  Massachusetts  it  has  been  held  that  persons 
who  have  the  requisite  qualifications  as  to  residence,  but 
who  have  been  exempted  from,  taxation  on  account  of  their 
poverty  two  successive  years  before  their  arrival  at  the  age 
of  seventy  years,  are  not  entitled  to  vote,  under  that  clause 
of  the  Constitution  of  that  State  which  gives  the  right  of 
suffrage  to  persons  otherwise  qualified,  and  who  "  shall  be 
by  law  exempted  from  taxation."  ^ 

§  112.  A  provision  of  the  Constitution  of  Yirginia  gave 
the  right  to  vote  to  those  who,  possessing  certain  other  quali- 
fications, "  shall  have  been  assessed  with  a  part  of  the  reve- 
nue of  the  Commonwealth  within  the  preceding  year,  and 
actually  paid  the  same."  Under  this  provision  it  was  held 
by  a  majority  of  the  committee,  that  where  taxable  property 
is  owned  and  possessed  by  the  son,  and  is  assessed  in  the 
name  of  the  father,  but  the  tax  is  actually  paid  by  the  son, 
he  having  all  the  other  qualifications  required,  is  entitled  to 
vote ;  but  that  if  the  property  is  both  assessed  to  and  paid 
by  the  father,  the  vote  is  to  be  rejected. 

Also,  that  where  a  revenue  tax  is  duly  assessed,  and  the 
sheriff  has  paid  the  tax  himself,  and  has  not  returned  the 
party  delinquent,  that  this  is  to  be  deemed  a  payment  by 
the  party  so  as  to  entitle  him  to  vote.^ 

§  113.  In  Pennsylvania  the  general  rule  is  that  no  person 
shall  vote  without  having  been  assessed  and  having  paid  a 
tax.  Persons  not  assessed  are  by  the  law  of  that  State  re- 
quired, in  order  to  vote,  to  answer  certain  questions  under 
oath  as  to  tax,  age,  residence,  etc.,  and  in  addition  to  prove 
their  residence  by  the  oath  of  a  qualified  voter  of  the  divis- 
ion ;  and  the  statute  made  it  the  duty  of  the  inspectors  to 
require  such  proof  whether  the  voter  be  challenged  or  not. 
Under  this  law  it  has  been  held  by  the  House  of  Represent- 
atives that  persons  who  were  not  assessed,  and  who  voted 
without  answering  any  of  the  questions  required  to  be  an- 
swered, and  without  producing  the  testimony  of  a  qualified 

1  Opinion  of  Judges,  5  Met.,  591.    See,  also,  11  Pick.,  538. 

2  Draper  «.  Johnson,  CL  &  H.,  703. 

6 


83  ELECTIONS.  [chap.  IV. 

voter  as  to  their  residence,  are  presumed  to  be  illegal  voters. 
And  where  the  number  of  such  votes  was  large  enough  to 
destroy  the  reliability  of  the  return,  there  being  no  proof 
upon  which  the  poll  could  be  purged  of  such  illegal  votes,  it 
was  rejected.^ 

This  decision  is  not  in  conflict  with  the  general  rule  that 
a  person  who  has  voted  is  presumed,  until  the  contrary  is 
shown,  to  have  been  qualified.  The  contrary  was  presump- 
tively shown  by  proof  that  these  voters  had  failed  to  comply 
with  the  statute  which  required  this  evidence  to  be  produced 
by  them  before  voting.  When  it  is  thus  shown  that  persons 
have  voted  without  proving  their  qualifications  as  required 
by  positive  statute,  it  is  incumbent  upon  the  party  claiming 
the  benefit  of  the  votes  of  such  persons  to  show  affirma- 
tively that  they  were  qualified  voters. 

§  114.  Under  a  provision  in  the  Constitution  of  Virginia 
giving  the  right  to  vote  to  those  who  for  twelve  months  have 
been  housekeepers  and  heads  of  families,  it  was  held  that  un- 
married persons  who  are  living  with  their  mothers  or  with 
younger  brothers  and  sisters,  having  charge  of  the  family, 
the  father  being  absent  or  dead,  are  to  be  deemed  "  house- 
keepers and  heads  of  families."  Also,  that  in  determining 
whether  a  person  is  a  voter  within  the  meaning  of  this  pro- 
vision of  the  Constitution  it  is  not  proper  to  inquire  whether 
he  is  legally  married  to  the  woman  with  whom  he  lives  and 
keeps  house.'^ 

§  115.  The  vote  of  an  idiot  or  person  non  compos  mentis 
ought  not  to  be  received ;  and  if  such  a  person  has  voted,  his 
vote  may  be  rejected  upon  a  contest,  without  a  finding  in 
lunacy.*  But  the  vote  of  a  man  otherwise  qualified,  who  is 
neither  a  lunatic  nor  an  idiot,  but  whose  faculties  are  merely 
greatly  enfeebled  by  old  age,  is  not  to  be  rejected.*  When 
a  vote  is  attacked  on  the  ground  that  the  voter  who  cast  it 

1  Myers  v.  Moffatt,  3  Bart,  564;  Covode  v.  Foster,  3  Bart.,  600. 

2  Draper  v.  Johnson,  CL  &  H.,  702. 

»  Thompson  u  Ewing,  1  Brewst,  68,  69. 
♦Sinks  V.  Reese,  19  Ohio  St.,  307. 


CHAP.  IV.]  QUALIFICATIONS   OF   VOTEES.  83 

was  non  compos  mentis^  it  is  necessary  to  establish  satisfacto- 
rily, by  competent  evidence,  the  alleged  want  of  intelligence, 
and  the  test  would  probably  be  about  the  same  as  in  cases 
where  the  validity  of  a  will  is  attacked  on  the  ground  that 
the  testator  was  not  of  sound  mind  when  it  was  executed. 
If  the  voter  knew  enough  to  understand  the  nature  of  his 
act  —  if  he  understood  what  he  was  doing  —  that  is  probably 
sufficient,^ 

§  116.  The  better  opinion  seems  to  be  that  idiots  and 
lunatics  are  by  the  common  political  law  of  England  and 
this  country  disqualified  from  voting.^  But  these  unfor- 
tunate persons  are  expressly  excluded  from  the  right  to  vote 
by  the  Constitutions  of  Delaware,  Iowa,  Kansas,  Maryland, 
Minnesota,  Nevada,  New  Jersey,  Ohio,  Oregon,  Khode 
Island,  West  Virginia,  Wisconsin,  and  perhaps  by  other 
States.  Paupers  are  excluded  in  New  York,  California, 
Louisiana,  Maine,  Massachusetts,  New  Hampshire,  New 
Jersey,  Ehode  Island,  South  Carolina  and  West  Yirginia. 
Persons  under  guardianship  are  excluded  in  Kansas,  Maine, 
Massachusetts,  Minnesota  and  Wisconsin,  Persons  excused 
from  paying  taxes  at  their  own  request  are  excluded  in  New 
Hampshire.  Capacity  to  read  is  required  in  Connecticut, 
and  capacity  to  read  and  write  in  Massachusetts.' 

§  117.  The  Constitution  of  Kentucky  provided  that  votes 
"shall  be  personally  and   publicly  given  viva  voce."    In 

1  Clark  V.  Robinson,  88  111.,  498;  [Smith  v.  Jackson,  Row.,  9]. 

2Cooley's  Const.  Lim.,  599. 

*  [In  Pennsylvania  and  Massachusetts  the  voter  must  have  paid  within 
two  years  a  State  or  county  tax,  and  the  payment  of  some  tax  is  re- 
quired in  Rhode  Island,  Delaware,  Tennessee  and  Georgia,  The  Con- 
stitutions of  Alabama,  Arkansas,  California  and  Mississippi  expressly 
forbid  a  property  tax,  and  the  Constitutions  of  Alabama  and  Missis- 
sippi forbid  an  educational  test,  Belgium  has  an  electoral  law  con- 
ferring the  right  of  suffrage  on  those  who  contribute  a  certain  amount 
to  the  revenue,  to  every  man  who  has  taken  honors  at  a  high  school  or 
college,  or  any  one  who  can  pass  a  prescribed  examination  with  credit, 
and  to  foremen  of  workshops  and  factories.  The  experiment  is  con- 
fined to  provincial  and  communal  elections.  Code  Electoral  Beige,  289; 
Main's  Popular  Government,  p.  110.] 


84  ELECTIONS.  [chap.  IV. 

Letch&r  V.  Moore}  it  appeared  that  three  persons  had  voted 
for  Mr.  Letcher,  who,  though  intelligent  and  able  to  read  and 
write,  were  deaf  and  dumb.  Of  course  these  persons  could 
not  literally  vote  viva  voce,  and  the  question  was  raised 
whether  they  were  legal  voters  under  the  Constitution.  The 
committee  held  that  their  votes  should  be  received,  as  clearly 
within  the  spirit  of  the  Constitution,  although  in  reaching 
this  conclusion  a  previous  decision  of  the  Senate  of  Ken- 
tucky, in  the  case  of  WilUa/m  v.  Mason  (not  reported),  was 
overruled.  No  doubt  is  entertained  as  to  the  correctness  of 
the  ruling  of  the  committee. 

»CL&H.,748L 


CHAPTER  Y. 
DISQUALIFICATIONS  OF  VOTERS. 

§  118.    Disfranchisement  as  a  punishment  for  crime  not  cruel  or  tm* 

usuaL 

119-121.     Infamous  crimes, 

119, 120.    Dueling. 

119, 120.    Sending  or  accepting  a  challenge  to  fight  a  dueL 

120.    Effect  of  sentence  of  fine  under  act  authorizing  fine,  or  impris- 
onment in  the  penitentiary. 

120.  Conflicting  decisions. 

121.  Discussion  as  to  meaning  of  "  infamous  crime." 

121.  Decisions  of  United  States  Supreme  Court. 

122.  Desertion  from  military  service. 

122.  Effect  of  act  of  Congress  of  March  3, 1865. 

123.  Judgment  of  a  court  of  competent  jurisdiction  after  trial  neces- 

sary. 
124    The  question  is  judicial  and  must  be  decided  by  the  courts. 

124.  Record  of  conviction  must  be  produced  before  election  officers. 

125.  Effect  of  pardon. 

§  118.  The  punishment  of  disfranchisement  is  not  a  cruel 
and  unusual  one,  and  it  is  competent  for  the  Legislature, 
unless  restrained  by  the  State  Constitution,  to  inflict  it  as  a 
penalty  for  crime ;  but  when  the  Constitution  provides  that 
a  law  may  be  passed  excluding  from  the  right  of  suffrage 
persons  who  have  been  or  may  be  convicted  of  infamous 
crimes,  it  would  seem  that  it  is  not  in  the  power  of  the 
Legislature  to  inflict  this  penalty  for  any  other  than  infa- 
mous offenses.^ 

§  119.  In  the  case  last  named,  it  was  held  that  the  right 
of  voting,  and  being  voted  for,  are  not  convertible  terms. 
It  is  there  said  that  "  a  great  class  of  voters  are  not  required 
to  be  freeholders,  and  yet  it  is  necessary  (in  New  Tork)  to 
the  qualification  of  a  Senator  or  a  Governor  that  he  should 

1  Barker  v.  People,  20  Johns.,  457. 


86  ELECTIONS.  [chap.  V. 

be  a  freeholder,  and  with  respect  to  the  Governor  he  must 
be  a  native  citizen  of  the  United  States,  thirty  years  of  age, 
and  a  resident  vrithin  the  State  for  five  years.  The  right  of 
suffrage  is  therefore  distinct  from  the  right  of  being  eligible 
to  an  office."  It  was  accordingly  held  that  an  act  of  the 
Legislature  of  New  York  to  suppress  dueling,  passed  in  1816, 
and  which  declared  that  any  person  convicted  of  sending  or 
accepting  a  challenge  to  fight  a  duel  "  shall  be  incapable  of 
holding  or  being  elected  to  any  post  of  profit,  trust  or  emolu- 
ment, civil  or  military,  under  this  State,"  is  constitutional ; 
and  a  conviction  and  judgment  of  disqualification  under  it 
are  legal  and  valid.  In  the  same  connection,  however,  the 
court  discuss  the  question  whether  the  Legislature  is  not  re- 
strained from  excluding  from  the  right  of  suffrage  persons 
convicted  of  a  crime  which  is  not  infamous,  within  the  legal 
signification  of  that  term,  and  the  conclusion  is  that  it  is 
only  upon  the  conviction  for  an  infamous  crime  that  a  voter 
can  be  disqualified.  The  court  was  of  the  opinion  that  in- 
famous crimes  are  treason,  felony  and  every  species  of  the 
crimen  falsi,  such  as  perjury,  conspiracy  and  barratry. 

Sending  or  accepting  a  challenge  to  fight  a  duel  was  not, 
therefore,  in  the  opinion  of  the  court,  an  infamous  crime,  but 
inasmuch  as  the  right  of  suffrage  does  not  necessarily  imply 
the  right  of  being  voted  for,  it  was  held  that  the  latter  right 
might  be  forfeited  by  conviction  for  a  crime  not  infamous, 
if  so  provided  by  statute.* 

§  120.  Under  a  constitutional  provision  declaring  that  an 
elector  shall  forfeit  his  privilege  by  "  a  conviction  of  any 
crime  which  is  punishable  by  imprisonment  in  the  peniten- 
tiary," it  has  been  held  that  the  conviction  of  a  defendant, 
under  a  plea  of  guilty,  of  a  crime  punishable  by  a  fine,  or 
imprisonment  in  the  jail  or  penitentiary,  and  where  in  fact 
the  punishment  was  simply  by  fine,  deprived  the  party  con- 
victed of  the  right  to  vote. 

Under  such  a  constitutional  provision  it  was  held  that  the 
privileges  of  an  elector  are  forfeited  by  the  conviction  of  any 

i^n<e,  §118. 


CHAP.  V.J  DISQUALIFICATIONS   OF   VOTERS.  87 

crime  "  punishable "  by  imprisonment  in  the  penitentiary, 
whether  that  punishment  is  actually  inflicted  or  not,  and 
that  the  liability  to  punishment,  rather  than  t  he  actual  pun- 
ishment administered,  determines  the  question.^ 

But  the  opposite  doctrine  was  laid  down  by  the  Supreme 
Court  of  Nebraska  in  Qandy  v.  State^  and  by  the  Supreme 
Court  of  California  in  Peojple  v.  Cornell?  In  these  latter 
cases  it  is  held  that  the  punishment  which  the  court,  in  the 
exercise  of  its  discretion,  actually  inflicts  must  determine 
the  question  of  disfranchisement  under  the  statute. 

§  121.  It  has  been  held  by  the  Supreme  Court  of  the 
United  States  that  a  crime  punishable  by  imprisonment  in 
a  State  prison  or  penitentiary,  with  or  without  hard  labor,  is 
an  infamous  crime  within  the  provisions  of  the  Fifth  Amend- 
ment of  the  Constitution,  which  provides  that  "  no  person 
shall  be  held  to  answer  for  a  capital  or  otherwise  infamous 
crime  unless  on  a  presentment  or  indictment  of  a  grand 
jury."  *  These  cases  lay  down  the  rule  that  crimes  are  to  be 
regarded  as  infamous,  within  the  meaning  of  said  constitu- 
tional provision,  if  they  are  such  as  are  subject  to  an  infa- 
mous punishment,  whether  they  are  such  as  are  in  their 
nature  infamous  or  not ;  and  punishment  hj  imprisonment 
in  a  penitentiary  is  held  to  be  infamous  punishment. 

There  were  two  kinds  of  infamy  known  to  the  law  of  Eng- 
land before  the  Declaration  of  Independence ;  one  founded 
in  the  opinions  of  the  people  respecting  the  mode  of  punish- 
ment, and  the  other  in  the  construction  of  law  respecting  the 
future  credibility  of  the  delinquent.  The  infamy  which  at 
common  law  disqualifies  the  convict  to  be  a  witness  depended 
upon  the  character  of  the  crime,  and  not  upon  the  nature  of 
the  punishment.  A  conviction  of  such  crimes  as  treason, 
felony,  forgery,  perjury,  bribery,  etc.,  rendered  the  convict 

1  United  States  v.  Watkins,  7  Sawy.,  85. 
2 10  Neb.,  243. 
3 16  Cal.,  187. 

^Ex  parte  Wilson,  114  U.  S.,  417;  Mackin  v.  United  States,  117  U.  S., 
S4d. 


88  ELECTIONS.  [chap.  T. 

incompetent  to  testify  as  a  witness;  but  it  was  held  that  in- 
competency to  be  a  witness  was  not  the  only  test  for  deter- 
mining the  application  of  the  Fifth  Amendment.  How  far 
this  ruling  will  be  followed  in  the  construction  of  State  laws 
providing  for  the  disfranchisement  of  persons  convicted  of 
infamous  crimes  remains  to  be  seen.  It  is,  however,  believed 
that,  in  the  absence  of  any  statutory  definition  of  "  infamous 
crimes,"  it  will  be  found  most  agreeable  to  the  general  un- 
derstanding, both  of  the  legal  profession  and  of  the  people, 
to  hold  that  they  are  such  only  as  are  punishable  by  impris- 
onment in  the  penitentiary  —  a  punishment  which  by  com-, 
mon  understanding  is  regarded  as  infamous.  Such  seems  to 
be  the  oiDinion  prevalent  in  most  of  the  States,  as  evidenced 
by  their  statutes,  for  a  large  majority  of  them  have  adopted 
statutes  dividing  all  crimes  into  felonies  and  misdemeanors, 
and  providing  for  the  punishment  of  persons  guilty  of  the 
former  by  imprisonment  in  the  State  prison  or  penitentiary.^ 
§  122.  By  the  21st  section  of  the  act  of  Congress  ap- 
proved March  3,  1865,  it  was  provided  that,  "  in  addition  to 
the  other  lawful  penalties  of  the  crime  of  desertion  from  the 
military  or  naval  service  of  the  United  States,  all  persons 
who  have  deserted  the  military  or  naval  service  of  the  United 
States,  who  shall  not  return  to  said  service  or  report  them- 
selves to  a  Provost  Marshal  within  sixty  days  after  the  proc- 
lamation hereinafter  mentioned,  shall  be  deemed  and  taken 

I  See  Mackin  v.  United  States,  117  U.  S,,  353.  A  statute  of  a  State  dis- 
qualifying as  a  voter  any  person  who  has  been  convicted  of  an  infamous 
crime  deemed  by  the  laws  of  the  State  a  felony  does  not  deprive  of  the 
right  of  suffrage  a  person  who  has  been  convicted  in  the  courts  ot  the 
United  States  of  a  mere  statutory  offense  against  the  United  States. 
United  States  v.  Barnabo,  14  Blatchf.,  74.  A  conviction  for  a  conspiracy 
to  commit  an  offense  against  the  United  States,  created  by  the  United 
States  Revised  Statutes,  Section  5440,  is  not  a  conviction  of  a  felony  such 
as  to  disqualify  the  party  convicted  from  voting  as  provided  in  the  Ne- 
braska Constitution,  Article  8,  Section  3.  Gandy  v.  State,  10  Neb.,  248. 
[A  conviction  of  a  crime  in  a  Federal  Court  has  the  effect  to  exclude 
the  person  convicted  from  oflSce  and  suffrage  in  this  State  (Kentucky), 
as  if  convicted  in  a  court  of  this  State  of  a  crime  against  its  statute. 
A  pardon  by  the  President  of  the  United  States  restores  such  a  person 
his  rights.    Cowan  v.  Prowse,  93  Ky.,  157.] 


CHAP,  v.]  DISQUALIFICATIONS   OF   VOTERS.  89 

to  have  voluntarily  relinquished  and  forfeited  their  rights  of 
citizenship,  and  their  right  to  become  citizens,  and  such  de- 
serters shall  be  forever  incapable  of  holding  any  office  of 
trust  or  profit  under  the  United  States,  or  of  exercising  any 
rigid  of  citizens  thereof."  The  constitutionality  of  this  act 
was  brought  in  question  before  the  Supreme  Court  of  Penn- 
sylvania in  the  case  of  Hiiber  v.  JReily}  The  case  was  that 
of  a  citizen  whose  vote  was  refused  by  the  judge  of  elec- 
tion, upon  the  ground  that,  having  been  regularly  drafted, 
he  had  failed  and  refused  to  report,  and  never  did  report  for 
muster. 

It  did  not  appear,  nor  was  it  alleged,  that  the  person  whose 
vote  was  rejected  had  ever  been  tried  or  convicted  upon  the 
charge  of  desertion.  The  officers  of  the  election  assumed 
the  right  to  consider  and  decide,  upon  such  evidence  as  was 
presented  to  them  at  the  polls,  the  question  of  the  voter's 
guilt  or  innocence,  and  having  tried  that  question  in  their 
own  way,  and  held  the  accused  to  be  guilty,  they  refused  his 
vote.  It  is  manifest  that  such  a  proceeding  as  this  is  open 
to  very  grave  objections  aside  from  any  questions  as  to  its 
constitutionality. 

The  constitutionality  of  the  act  was  assailed  upon  these 
grounds,  viz. : 

1.  That  it  was  an  ex  post  facto  law,  imposing  additional 
punishment  for  an  offense  committed  before  its  passage. 

2.  That  it  was  an  attempt  on  the  part  of  Congress  to  reg- 
ulate suffrage  in  the  States,  or  to  impair  it. 

3.  That  the  act  proposed  to  inflict  pains  and  penalties 
upon  offenders  without  a  trial  and  conviction  by  due  process 
of  law,  and  that  it  was  therefore  prohibited  by  the  bill  of 
rights. 

Upon  the  first  point  it  was  held  that  the  penalty  of  for- 
feiture of  citizenship  imposed  upon  those  who  had  deserted 
the  military  or  naval  service  prior  to  the  passage  of  the  act 
was  not  a  penalty  for  the  original  desertion,  but  for  persist- 
ence in  the  crime,  and  a  refusal  to  report  for  muster  and 

153  Pa.  St.,  112;  Bright  Elec  Cas.,  69. 


yO  ELECTIONS.  [chap.  V. 

duty  when  commanded  so  to  do.  Upon  the  second  point  the 
Court  held  that  the  act  was  not  an  attempt  to  regulate  suf- 
frage in  the  States,  but  simply  an  exercise  on  the  part  of 
Congress  of  its  power  to  "  deprive  an  individual  of  the  op- 
portunity to  enjoy  a  right  that  belongs  to  him  as  a  citizen  of 
a  State,"  which  was  held  to  be  a  different  thing  from  taking 
away  or  impairing  the  right  itself.  The  Federal  Govern- 
ment, in  an  exercise  of  its  right  to  imprison  a  citizen  of  a 
State  for  crime,  or  to  impress  him  into  the  military  service 
and  remove  him  from  the  State,  may  deprive  him  of  the  op- 
portunity to  vote ;  and  no  doubt  the  forfeiture  of  citizenship 
and  of  all  its  rights  may  be  affixed  as  a  penalty  for  the  com- 
mission of  a  crime  against  the  United  States. 

Upon  the  third  point  the  Court  held  that  the  act  could 
not  be  upheld  as  constitutional,  if  it  did  in  fact  impose  pen- 
alties before  and  without  a  trial  by  due  process  of  law ;  and 
by  due  process  of  law  is  meant  "  the  law  of  the  particular 
case  administered  by  a  judicial  tribunal,  authorized  to  ad- 
judicate upon  it;"  and  the  Court  say  that  "a  judge  of  elec- 
tions, or  board  of  election  officers,  constituted  under  State 
laws,  is  not  such  a  tribunal."  The  Court,  however,  conclude 
that  the  act  of  Congress  was  intended  to  apply,  and  does 
apply,  only  to  those  cases  of  desertion  in  which  there  has 
been  a  conviction  by  court-martial,  and  that  thus  construed 
it  is  constitutional.^ 

§  123.  "Whether  "  a  citizen  has  been  guilty  of  an  offense 
forfeiting  his  right  to  vote  "  is  necessarily  a  judicial  ques- 
tion which  must  be  decided  by  the  courts  on  a  full  and  fair 
trial  on  an  indictment  or  a  presentment  by  a  grand  jury,  or 
perhaps  on  information  where  that  mode  of  proceeding  is 
authorized.  That  question  cannot  be  rightfully  adjudged 
collaterally  or  incidentally  by  the  officers  of  an  election.^  It 
has  been  held  in  Kentucky  that  a  test  oath  cannot  be  con- 
stitutionally required  in  such  a  case,  and  that  the  refusal  to 

1  To  the  same  effect  is  State  v.  Symonds,  57  Me.,  148. 

2  [Garrison  v.  Mayo,  Mob.,  55.] 


CHAP,  v.]  DISQUALIFICATIONS   OF   VOTERS.  91 

take  such  an  oath  cannot  be  deemed  a  judicial  trial  and  con- 
viction of  the  imputed  offense.^ 

§  124.  We  have  elsewhere  seen  ^  that  the  act  of  Congress 
of  March  3,  1865,  denying  rights  of  citizenship  to  deserters 
from  the  army,  must  be  held  to  apply  to  such  persons  only 
as  have  been  duly  convicted  of  the  crime  of  desertion.  It 
follows  that,  to  exclude  a  person  from  voting  upon  this 
ground,  evidence  must  be  produced  before  the  proper  offi- 
cers holding  the  election  that  such  person  has  been  so  con- 
victed. It  is  the  duty  of  such  election  officers  to  ascertain 
who  are  citizens,  not  to  adjudge  and  enforce  forfeitures  of 
citizenship.  In  all  cases  where  it  appears  that  a  person  pos- 
sesses the  requisites  as  to  birth  or  naturalization,  age  and 
residence,  of  a  voter,  he  must  be  presumed  to  be  an  elector 
until  the  contrary  is  shown  by  the  best  evidence,  which,  in 
the  case  of  a  conviction  for  crime,  must  be  the  record,  or  a 
duly  authenticated  copy  thereof.^ 

§  125.  A  general  and  absolute  pardon,  granted  by  the 
Governor  of  a  State  by  virtue  of  power  conferred  upon  him 
to  grant  the  same,  relieves  the  person  to  whom  it  is  granted 
not  only  from  the  punishment  provided  by  his  sentence,  but 
from  all  the  consequential  disabilities  of  the  judgment  of 
conviction,  and  restores  such  person  to  the  full  enjoyment 
of  his  civil  rights,  including  the  right  to  vote.* 

The  constitutional  provisions  conferring  upon  the  Execu- 
tives of  the  several  States  the  pardoning  power  are  gen- 
erally modeled  after,  and  are  analogous  to,  the  provision  in 
the  Constitution  of  the  United  States  which  empowers  the 

iBurkett  v.  McCarty,  10  Bush  (Ky.),  758. 

2  Ante,  %  122. 

3Goetchens  r?.  Matheson,  58  Barb.,  152;  40  How.  Pr.,  97.  See  Burkett 
V.  McCarty,  10  Bush  (Ky.),  758  [People  v.  Bell,  54  Hun,  567]. 

4  Wood  V.  Fitzgerald,  3  Oreg.,  569;  4  Black.  Comm.,  402;  8  Bacon's  Ab., 
Title  Pardon;  The  People  v.  Pease,  3  Johna  Cas.,  333-4;  In  re  Deming, 
10  Johns.,  233;  Perkins  v.  Stevens,  24  Pick.,  277;  Ex  parte  Garland,  4 
Wall,  333;  United  States  v.  Paddleford,  9  Wall.,  531;  United  States  v. 
Klein,  13  Wall.,  128;  Carlisle  v.  United  States,  16  Wall.,  147;  Knote  v. 
United  States,  95  U.  S.,  149;  Jones  v.  Board  of  Registers,  56  Miss.,  768. 


92  ELECTIONS.  [chap.  V. 

President  "to  grant  reprieves  and  pardons  for  offenses 
against  the  United  States,  except  in  cases  of  impeachment."  ^ 
In  construing  this  provision  in  Ex  jparte  Garland^  aupra^  the 
Supreme  Court  of  the  United  States  said : 

"  The  power  thus  conferred  is  unlimited  with  the  excep- 
tion stated.  It  extends  to  every  offense  known  to  the  law, 
and  may  be  exercised  at  any  time  after  its  commission,  either 
before  legal  proceedings  are  taken,  or  during  their  pendency, 
or  after  conviction  and  judgment.  This  power  of  the  Presi- 
dent is  not  subject  to  legislative  control.  Congress  can 
neither  limit  the  effect  of  his  pardon  nor  exclude  from  its 
exercise  any  class  of  offenders.  The  benign  prerogative  of 
mercy  reposed  in  him  cannot  be  fettered  by  any  legislative 
restrictions.  Such  being  the  case,  the  inquiry  arises  as  to 
the  effect  and  operation  of  a  pardon,  and  on  this  point  all 
the  authorities  concur.  A  pardon  reaches  both  the  punish- 
ment prescribed  for  the  offense  and  the  guilt  of  the  offender ; 
and  when  the  pardon  is  full  it  releases  the  punishment  and 
blots  out  of  existence  the  guilt,  so  that  in  the  eye  of  the  law 
the  offender  is  as  innocent  as  if  he  had  never  committed  the 
offense." 

iConst,  Art.2,  Sea2L 


CHAPTER  YI. 

REGULATIONa 

§  136.    Must  be  reasonable. 
126.    Must  regulate,  and  not  impair,  the  right  to  votOt 
127-134.    Registration  laws  constitutional 

128.  May  operate  only  in  certain  cities  and  villages. 

129.  Distinction  between  regulation  and  subversion  of  rights 

130, 131.    Validity  of  acts  requiring  registration  prior  to  day  of  elec- 
tion. 
182.    Conflicting  decisions. 
182.    Weight  of  authority  sustains  validity  of  such  acta 

133.  All  regulations  must  be  reasonable. 

134.  Decision  in  Massachusetts. 

135.  Provisions  of  registry  law  cannot  be  disregarded. 
136-138.    Denial  of  right  of  registration. 

139.  Mode  of  conducting  registration. 

139.  Notica 

139.  Change  of  place. 

140.  Statutes  prescribing  mode  of  proceeding  generally  directory. 

140.  Legal  voter  not  prejudiced  by  irregularitiea 

141.  Proof  required  of  unregistered  voter. 

142.  Nature  and  extent  of  power  of  Congress  to  prescribe  regulation! 

143.  144.    Constitutionality  of  Enforcement  Act. 

145,  146.    Implied  power  of  Congress  over  Federal  elections. 

§  126.  It  is  within  the  province  of  the  Legislature  to  pre- 
scribe reasonable  rules  and  regulations  for  the  conduct  of 
elections,  including  reasonable  provisions  for  the  registration 
of  voters.^  But  it  is  manifest  that  under  color  of  regulating 
the  mode  of  exercising  the  elective  franchise,  it  is  quite  pos- 
sible to  subvert  or  injuriously  restrain  the  right  itself;  and 
a  statute  that  clearly  does  either  of  these  things  must,  of 
course,  be  held  invalid  on  the  ground  that  it  seeks  to  deprive 
the  citizen  of  his  constitutional  right.' 

i[Slaymaker  v.  Phillips  (Wyo.),  42  Pac.  Rep.,  1049;  Com.  Council  of 
Detroit  v.  Rush,  82  Mich.,  532;  State  v.  Old,  95  Tenn.,  723.] 
J  [Mills  V.  Green,  67  Fed.  Rep.,  818;  In  re  Appointment  of  Supervisors, 


94  ELECTIONS.  [chap.  VI. 

For  example,  a  registry  act  Tvhich  should  undertake  to  re- 
quire a  longer  residence  prior  to  the  time  of  voting  than  that 
required  by  the  Constitution,^  or  which  should  require  the 
payment  of  taxes  not  required  to  be  paid  by  constitutional 
provision,^  or  which  should  impose  upon  a  particular  class 
of  citizens  conditions  and  requirements  not  required  of  all 
others,  or  which  should  require  all  voters  in  the  State  to 
register  at  the  State  capital,  or  which  should  impose  any 
other  unreasonable,  unjust  and  onerous  conditions  precedent 
to  the  right  to  vote,  would  be  void.  The  right  to  vote 
must  not  be  impaired  by  the  regulation.  It  must  be  regu- 
lation purely,  and  not  destruction  or  substantial  impairment 
of  the  right.' 

52  Fed.  Rep.,  254.  While  the  Legislature  of  a  State  may  prescribe  an 
official  ballot  and  prohibit  the  use  of  any  other,  it  cannot  restrict  an 
elector  to  vote  for  some  one  of  the  candidates  whose  names  have  been 
printed  upon  the  official  ballot.  He  must  be  left  free  to  vote  for  whom 
he  pleases.  This  is  a  right  guaranteed  to  him  by  the  Constitution  of 
the  State.    State  v.  Dillon,  32  Fla.,  545.] 

1  [The  statute  which  requires  residents  of  a  State  who  have  been  ab- 
sent therefrom  for  six  months  or  more  to  register  ninety  days  before 
the  election  is  unconstitutional,  as  the  Constitution  of  the  State  re- 
quires a  fixed  residence  of  only  sixty  days  in  a  coiinty  and  thirty  days 
in  a  precinct  by  persons  otherwise  qualified  to  vota  Where  the  Con- 
stitution of  the  State  provides  for  the  registration  of  "all  persons  en- 
titled to  vote,"  it  is  an  implied  prohibition  against  providing  for  the 
registration  of  any  one  class  or  part  of  the  voters,  and  an  act  of  the 
Legislature  which  provides  for  the  registration  of  only  such  persons  as 
have  been  temporarily  absent  from  the  State  for  six  months  or  more, 
and  such  as  have  not  resided  in  any  one  county  for  six  months,  is  un- 
constitutional Morris  v.  Powell,  125  Ind.,  281.  For  a  synopsis  of  the 
constitutional  and  statute  provisions  of  the  several  States  respecting 
registration,  see  note  to  Morris  v.  Powell,  29  Am.  Law  Keg.,  872.] 

2  [Bew  V.  State,  71  Miss.,  1.] 

» [Gooding  v.  Brown,  22  Fla,,  437;  City  of  Madison  v.  Wade,  88  Ga.,  699. 
An  act  of  the  Legislature  which  makes  it  a  misdemeanor  for  any  one  to 
remove  ballots  from  the  voting  place,  or  to  aid  a  voter  in  the  selection 
or  marking  of  his  ticket,  and  which  requires  all  voters,  including  illit- 
erates, to  select  and  mark  their  own  tickets  with  such  assistance  only 
as  the  election  officers  may  lawfully  afford,  is  not  in  violation  of  the 
provisions  of  the  Fourteenth  Amendment  to  the  Constitution  of  the 
United  States,  forbidding  any  State  to  make  or  enforce  any  law  which 


CHAP.  VI.]  EEGULATIONS.  9l5 

§  12Y.  The  power  to  provide  for  the  orderly  exercise  of 
the  right  of  suffrage,  which  we  have  seen  belongs  to  the 
State  Legislature,  includes  the  power  to  enact  registry  laws, 
and  to  prohibit  from  voting  persons  not  registered,^  It  is 
now  generally  admitted  that  these  laws  do  not  add  to  the 
constitutional  qualifications  of  voters,  and  are  therefore  not 
invalid.^ 

§  128.  An  election  and  registration  act  which  operates 
only  in  such  cities,  villages  or  towns  as  may  adopt  it  is  not, 
according  to  the  ruling  of  the  Supreme  Court  of  Illinois, 
therefore  a  local  or  special  act,  and,  as  such,  violative  of  the 
Constitution  of  that  State  forbidding  the  passage  of  such 
acts.'  A  law  is  here  held  to  be  general  if  by  its  terms  it 
applies  to  all  cities,  towns  and  villages  that  may  accept  its 
provisions.  It  is  held  to  be  enough  if  every  person  who 
may  be  within  the  relations  and  circumstances  described  is 
brought  within  its  operation.* 

§  129.  The  rule  above  stated  as  a  test  of  the  constitution- 
ality of  a  registration  act,  viz.,  that  it  shall  provide  for 
regulation  simply,  and  must  not  impair  the  constitutional 
right  of  suffrage,  is  generally  accepted  as  correct ;  but  some 
difference  of  opinion  has  very  naturally  arisen  upon  the 

will  abridge  the  privileges  or  immunities  of  citizens  of  the  United 
States.  The  Legislature  of  the  State  has  the  organic  authority  for  the 
passage  of  such  laws  as  will  secure  the  purity  of  elections,  and  it  can- 
not be  urged  that  such  laws  abridge  the  privileges  or  immunities  of 
the  citizen.    Cook  v.  State,  90  Tenn.,  407.] 

1  [Cowan  V.  Prowse,  93  Ky.,  156.] 

2Capen  v.  Foster,  12  Pick.,  485;  Bright.  Elec.  Cas.,  51;  Hawkins  v. 
Carroll  Co.,  50  Miss.,  735;  State  v.  Baker,  38  Wis.,  71;  Re  Polling  Lists, 
13  R.  L,  729;  State  v.  Butts,  31  Kan.,  537;  McMahon  v.  Mayor,  66  Ga., 
217;  S.  C,  42  Am.  Eep.,  65;  Patterson  v.  Barlow,  60  Pa.  St.,  54;  People  v. 
Hoffman,  116  111.,  587;  S.  C,  3  West.  Rep.,  522;  [Appeal  of  Cusick,  136  Pa. 
St.,  439;  In  re  Elect,  of  McDonough,  105  Pa.  St.,  488.  See  article  on 
constitutionality  of  registry  laws,  28  Cent.  Law  J.,  210]. 

3  People  V.  Hoffman,  116  111.,  587;  S.  C,  3  West  Rep.,  522;  [Common- 
wealth V.  McClelland,  83  Ky.,  686]. 

*See,  also,  upon  this  subject,  Guild  v.  Chicago,  83  IlL,  472;  Town  of 
Fox  V.  Town  of  Kendall,  97  111.,  72;  Hundley  v.  Comm'rs,  67  111.,  559; 
State  V.  Butts,  31  Kan.,  537. 


90  ELECTIONS.  [chap.  VI. 

question,  what  will  amount  to  an  impairment  of  that  right? 
How  far  may  the  Legislature  go  without  passing  the  bound- 
aries of  reasonable  regulation  ? 

The  Bill  of  Eights  of  Illinois  provides  that  "  all  elections 
shall  be  free  and  equal."  ^  In  People  v.  Hoffman^  supra, 
the  Supreme  Court  of  Illinois  held  that  the  declaration  that 
all  elections  must  be  equal  does  not  necessarily  mean  that 
there  must  be  uniformity  of  regulation  in  regard  thereto  in 
all  portions  of  the  State.  Certain  regulations  may  be  pre- 
scribed for  the  conduct  of  elections  in  cities  and  villages, 
though  they  may  have  no  application  to  the  country  places.* 

§  130.  A  question,  of  great  practical  importance  and  of 
some  difficulty  has  of  late  been  much  discussed  in  the  courts, 
and  conflicting  views  have  been  expressed.  It  is  this :  Is 
an  act  which  denies  the  right  to  vote  to  all  persons  not  reg- 
istered on  or  before  a  fixed  day  prior  to  the  day  of  election, 
and  which  makes  no  provision  for  registration  after  the  time 
limited,  so  onerous  and  unreasonable  as  to  be  justly  regarded 
an  impairment  of  the  constitutional  right  to  vote  ? '  Accord- 
ing to  the  great  weight  of  authority,  and  of  reason  also,  this 
question  must  be  answered  in  the  negative,  though  the  con- 
trary doctrine  has,  as  we  shall  presently  see,  been  asserted. 
The  case  of  People  v.  Hoffman,  supra,  presents  a  full  and 
able  discussion  of  this  question.  The  statute  of  Illinois 
then  under  consideration  required  registration  to  be  com- 

^  Const,  of  IlL,  Art  2,  Sec.  18.  [The  statute  of  Pennsylvania  regulat- 
ing the  use  of  an  official  ballot  is  not  in  Tiolation  of  the  constitu- 
tional provision  that  all  elections  shall  be  free  and  equal,  and  that  all 
laws  regulating  elections  shall  be  uniform  throughout  the  State.  De 
Walt  V.  Bartley,  146  Pa.  St.,  529.] 

2  [City  of  Owensboro  v.  Hickman,  90  Ky.,  629;  Commonwealth  v. 
McClelland,  83  Ky.,  686.  Where  a  registration  law  applies  only  to 
cities  and  towns,  and  a  city  of  the  second  class  is  within  the  limits  of 
an  election  precinct  containing  a  number  of  voters  residing  outside 
the  corporate  limits  of  the  city,  the  country  voters  of  the  precinct 
are  entitled  to  vote  at  any  polling  place  within  the  precinct  without 
having  registered,  even  if  such  polling  place  is  inside  the  city  limits. 
State  V.  Leavett,  33  Neb.,  285.] 

» lln  re  Smith,  3  N.  Y.  Sup.,  107.] 


CHAP.  VI.]  EEGULATIONS.  97 

plete  by  the  third  Tuesday  before  the  election,  and  it  was 
held  to  be  constitutional,  the  Court  saying: 

"  If  it  be  admitted  that  the  Legislature  can  require  a  voter 
to  establish  his  qualifications  before  election,  it  is  difficult  to 
see  why,  upon  principle  or  as  a  question  of  power,  it  cannot 
require  such  proof  to  be  made  as  well  three  weeks  before  the 
day  of  voting  as  ten  days,  or  five  days,  or  even  one  day 
prior  thereto.  The  real  question  involved  in  the  objection 
is  whether  any  man  can  be  prevented  from  voting  who 
proves,  or  offers  to  prove,  on  the  day  on  which  he  seeks  to 
cast  his  ballot,  that  he  is  a  legal  voter.  If  cases  can  be 
supposed  where  the  '  three  weeks '  requirement  will  deprive 
qualified  electors  of  the  privilege  of  depositing  their  votes, 
cases  can  also  be  supposed  where  one  day's  requirement  will 
work  the  same  result.  This  mode  of  reasoning,  carried  out 
to  its  logical  sequence,  will  make  any  kind  of  a  registry  law 
unconstitutional.  For  it  would  be  a  physical  impossibility 
for  the  judges  of  election  to  receive  the  votes  and  make  up 
the  registry  at  the  same  time  and  on  the  same  day.  If  the 
Legislature  has  the  power  to  direct  the  registry  to  be  com- 
pleted before  election  day,  and  if,  in  its  wisdom  and  under  a 
sense  of  its  responsibility  to  th6  people,  it  has  said  that  three 
weeks  before  election  is  a  reasonable  date  for  the  completion 
of  the  registry,  shall  this  court  substitute  its  judgment  for 
that  of  the  law-making  power,  and  say  that  a  shorter  time 
would  have  been  more  reasonable? 

"'The  moment  a  court  ventures  to  substitute  its  own 
judgment  for  that  of  the  Legislature,  in  any  case  where  the 
Constitution  has  vested  the  Legislature  with  power  over  the 
subject,  that  moment  it  enters  upon  a  field  where  it  is  im- 
possible to  set  limits  to  its  authority  and  where  its  discretion 
alone  wiU  measure  the  extent  of  its  interference.'  ^ 

" '  The  judiciary  cannot  run  a  race  of  opinions  upon 
points  of  right  reason  and  expediency  with  the  law-making 
power.' " ' 

1  Cooley,  Const,  lam.,  168. 

2  Id. 


98  ELECTIONS.  [chap.  VI. 

And  after  citing  a  number  of  oases  in  point,  the  Court 
continues: 

"  If  closing  the  registry  three  weeks  before  election  may 
deprive  a  few  persons  becoming  qualified  during  that  period 
of  the  privilege  of  casting  their  ballots,  keeping  it  open  untQ 
a  late  date  may  admit  to  the  polls  hundreds  of  persons  who 
should  never  have  been  allowed  to  vote.  When  the  ballot- 
box  becomes  the  receptacle  of  fraudulent  votes,  the  freedom 
and  equality  of  elections  are  destroyed.  '  That  election  is 
free  and  equal  where  all  of  the  qualified  electors  of  the 
precinct  are  carefully  distinguished  from  the  unqualified, 
and  are  protected  in  the  right  to  deposit  their  ballots  in 
safety  and  unprejudiced  by  fraud.  That  election  is  not  free 
and  equal  where  the  true  electors  are  not  separated  from  the 
false,  where  the  ballot  is  not  deposited  in  safety,  or  where 
it  is  supplanted  by  fraud.  It  is  therefore  the  duty  of  the 
Legislature  to  secure  freedom  and  equalty  by  such  regula- 
tions as  wiU  exclude  the  unqualified  and  allow  the  qualified 
only  to  vote.'^  Where  the  law-making  department  of  the 
government,  in  the  exercise  of  a  discretion  not  prohibited 
by  the  Constitution,  has  declared  that  a  certain  period  of  time 
is  needed  for  a  specified  investigation,  it  is  not  the  duty  of 
this  court  to  declare  that  such  period  is  unreasonably  long." 

The  authorities  cited  in  note  below  sustain  the  doctrine 
of  the  Supreme  Court  of  Illinois  upholding  the  constitution- 
ality of  an  act  requiring  registration  to  be  completed  on  a 
day  named  prior  to  the  election.' 

§  131.  A^ide  from  the  great  weight  to  be  given  to  the 
authorities  which  support  the  rule  above  laid  down,  the  rea- 
sons upon  which  it  rests  seem  to  be  strong  and  satisfactory. 
The  purpose  of  all  such  legislation  is  to  ascertain  beforehand, 
by  proper  proof,  who  are  entitled  to  vote  and  who  should  on 
the  day  of  election  be  permitted  to  exercise  that  right ;  and 
it  is  obvious  that  any  fair,  just  and  reasonable  provision 

» Patterson  v.  Barlow,  60  Pa.  St,  54 

^Capen  v.  Foster,  13  Pick.,  485;  Re  Polling  Lists,  13  R  L,  729;  State 
V.  Butts,  31  Kan.,  537;  Patterson  v.  Barlow,  60  Pa.  St,  54. 


CHAP.  VI.]  EEGULATI0N8.  99 

for  determining  these  questions  in  advance  should  be  upheld, 
"  Eequiring  a  party  to  be  registered,"  says  Brewer,  Judge, 
in  State  v.  Butts,  sujpra,  "  is  not  in  any  true  sense  imposing 
an  additional  qualification,  any  more  than  requiring  a  voter 
to  go  to  a  specific  place  for  the  purpose  of  voting;  or  to 
require  him  to  prove  by  his  own  oath  or  the  oaths  of  other 
parties  his  right  to  vote  when  challenged ;  or  than  requiring 
a  naturalized  foreigner  to  present  his  naturalization  papers. 
Each  and  all  of  these  are  simply  matters  of  proof — steps  to 
be  taken  in  order  to  ascertain  who  are  and  who  are  not  en- 
titled to  vote." 

It  also  seems  apparent  that  the  duty  of  considering  all 
questions  of  qualification  —  of  determining  who  are  legal  vot- 
ers —  can  be  discharged  by  a  suitable  tribunal  with  greater 
care,  deliberation  and  propriety  under  a  law  which  requires 
that  the  registration  shall  be  completed  before  the  day  of 
election  than  under  one  which  requires  such  questions  to  be 
considered  and  determined  in  the  hurry  and  confusion  at- 
tending the  conduct  of  the  election  at  the  polls.  There  is 
nothing  in  the  Constitution  of  any  of  the  States  which  gives 
to  a  citizen  the  right  to  have  his  qualifications  considered 
and  determined  on  the  day  of  election  and  not  at  any  time 
prior  thereto. 

§  132.  The  leading  case  upon  this  subject  is  undoubtedly 
that  of  Capen  v.  Foster,  supra,  in  which  the  question  was 
exhaustively  considered  by  Chief  Justice  Shaw,  and  the  con- 
clusion established  that  an  act  which  requires  registration 
prior  to  the  day  of  election  is  constitutional.  The  same 
opinion  is  strongly  expressed  by  Judge  Cooley  in  his  Con- 
stitutional Limitations.^ 

The  opposite  view  has,  however,  been  expressed  by  the 
Supreme  Court  of  "Wisconsin  in  Bell  v.  Kennedy^  by  the 
Supreme  Court  of  Ohio  in  Daggett  v.  Hudson^  and  by  the 
Supreme  Court  of  Oregon  in  White  v.  County  of  Midt- 

1 5th  Ed.,  p.  756. 

249  Wis.,  555. 

»43  Ohio  St,  548;  S,  C,  1  West  Rep,,  789. 


100  ELECTIONS.  [chap.  VL 

nomahy  In  the  first  named  case  there  was  a  strong  dis- 
senting opinion  by  Taylor,  J.,  and  in  the  last  by  Thayer,  J. 
In  the  case  of  Daggett  v.  Hudson  much  stress  is  laid  upon 
the  fact  that  by  the  Constitutions  of  many  States  registra- 
tion laws  are  either  authorized  or  required  to  be  enacted. 
The  inference  is  drawn  that  in  those  States  where  the  Con- 
stitutions are  silent  upon  the  subject  the  power  to  enact 
such  a  statute  as  we  are  now  considering  does  not  exist. 
But  it  is  to  be  observed  that  the  Constitution  of  no  State 
defines  the  character  of  the  registration  law  which  may  be 
enacted,  or  provides  that  registration  prior  to  the  day  of 
election  may  or  not  be  required.  It  is  believed  that  no  case 
goes  so  far  as  to  deny  the  power  of  the  Legislature  of  a 
State  to  pass  a  registration  act,  when  the  Constitution  is 
silent  upon  the  subject.  This  being  so,  the  question  we  are 
considering  is  not  affected  by  the  presence  or  absence  of  a 
constitutional  provision  authorizing  the  Legislature  to  pass 
such  an  act.  The  power  exists  in  either  case,  and  in  either 
case  the  question  must  be  the  same,  viz. :  whether  the  act 
when  passed  merely  regulates  the  exercise  of  the  right  to 
vote,  or  goes  further  and  impairs  it. 

§  133.  The  rule  which  governs  in  determining  the  ques- 
tion of  the  validity  of  a  registration  act  must,  we  think,  be 
the  same  which  determines  the  validity  of  any  other  act  re- 
lating to  the  subject  of  the  regulation  of  elections.  Thus, 
for  example,  it  is  of  course  clear  that  the  right  to  vote  given 
by  the  Constitution  is  subject  to  the  power  of  the  Legisla- 
ture of  the  State  to  prescribe  reasonable  regulations  respect- 
ing the  time,  place  and  manner  of  exercising  that  power. 
The  Legislature  may  fix  the  time,  but  it  must  be  a  reason- 
able time,;  and  if  such  a  time  be  fixed  as  to  exclude  from 
the  right  of  voting  any  portion  of  the  electors,  the  act  would 
doubtless  be  held  void.  It  is  likewise  true  that  the  Legisla- 
ture may  fix  the  places  at  which  the  right  of  suffrage  is  to 
be  exercised ;  but  the  places  must  not  be  so  fixed  as  to  nee- 

1 13  Oreg.,  317.    [The  same  view  has  been  adopted  by  the  Supreme 
Court  of  Nebraska.    State  v.  Corner,  32  Neb.,  265.] 


CHAP.  VI.]  KEGULATIONS.  101 

essarily  exclude  any  of  the  electors  from  exercising  their 
rights.  In  other  words,  whether  legislation  of  the  State 
relates  to  registration,  to  time,  to  place,  or  to  any  other  mat- 
ter respecting  the  mode  of  determining  the  qualifications  of 
voters  or  of  conducting  the  elections,  the  power  of  the  Leg- 
islature is  limited  to  the  prescribing  of  such  regulations  as 
do  not  substantially  impair  the  constitutional  privileges  of 
citizens.^ 

§  134.  A  recent  decision  of  the  Supreme  Judicial  Court 
of  Massachusetts  affords  an  apt  illustration  of  the  true  dis- 
tinction between  a  statute  which  provides  for  a  regulation 
of  the  exercise  of  the  right  to  vote  and  which  is  therefore 
valid,  and  one  which  imposes  an  unreasonable  restriction  or 
burden  upon  the  exercise  of  such  right  and  must  therefore 
be  held  void.  The  Constitution  of  that  State  gives  the  right 
to  vote  upon  certain  conditions  to  all  male  citizens  "  who 
have  resided  within  the  Commonwealth  one  year  and  within 
the  town  or  district  in  which  he  may  claim  a  right  to  vote 
six  calendar  months  preceding  any  election,"  etc.  By  an 
act  of  the  Legislature  adopted  in  1885,  it  was  provided  that 
"  no  person  hereafter  naturalized  in  any  court  shall  be  en- 
titled to  be  registered  as  a  voter  within  thirty  days  of  such 
naturalization."  The  question  arose  as  to  the  constitution- 
ality of  this  statute,  and  it  was  held  to  be  unconstitutional, 
as  imposing  an  additional  and  unreasonable  requirement  not 
warranted  by  the  Constitution.  The  Court,  by  Devens,  J., 
said: 

"  The  plaintiff,  according  to  the  allegations  of  his  declara- 
tion, possessed,  when  he  offered  himself  for  registration,  all 
the  qualifications  of  a  voter  required  by  the  Constitution. 
Any  legislation  by  which  the  exercise  of  his  rights  is  post- 
poned diminishes  them,  and  must  be  unconstitutional,  unless 
it  can  be  defended  on  the  ground  that  it  is  reasonable  and 
necessary  in  order  that  the  rights  of  others  (which  are  to  be 
protected  as  well  as  his  own)  be  guarded  against  the  danger 
of  illegal  voting." 

1  Monroe  v.  Collins,  17  Ohio,  665. 


102  ELECTIONS.  [chap.  VI. 

And  after  showing  that  the  right  to  prescribe  reasonable 
regulations  includes  the  right  to  provide  by  registration  laws 
for  ascertaining  the  qualifications  of  voters  in  advance  of  the 
day  of  election,  the  learned  judge  proceeded  to  show  that 
the  statute  in  question  did  not  fall  within  this  class  of  acts, 
and  in  concluding  the  opinion  said : 

"  The  regulation  which  it  assumes  to  make  is  partial  and 
calculated  injuriously  to  restrain  and  impede  in  the  exercise 
of  their  rights  the  class  to  whom  it  applies,  in  that  it  denies 
them  for  the  period  of  thirty  days  the  exercise  of  a  right 
which  the  Constitution  has  conferred  upon  them.  There  is 
no  warrant  for  this  within  the  just  and  constitutional  limits 
of  the  legislative  power  which  permits  reasonable  and  uni- 
form regulations  to  be  made  as  to  the  time  and  mode  of  ex- 
ercising the  right  of  suffrage,  and  as  to  the  ascertainment  of 
the  qualifications  of  voters."  ^ 

§  135.  It  being  conceded  that  the  power  to  enact  a  regis- 
try law  is  within  the  power  to  regulate  the  exercise  of  the 
elective  franchise  and  preserve  the  purity  of  the  ballot,  it 
follows  that  an  election  held  in  disregard  of  the  provisions 
of  a  registry  law  must  be  held  void.'^  In  Ensworth  v.  AXbin^ 
an  election  was  set  aside  upon  the  ground  that  there  was  no 
registration  whatever,  although  the  statute  required  registra- 
tion as  an  indispensable  prerequisite  to  an  election.*  It  has 
been  suggested  that  this  doctrine  puts  it  in  the  power  of  the 
board  of  registration  to  defeat  an  election  by  failing  to  meet, 

iKineen  v.  Wells  (1887),  144  Masa,  497.  [See,  also,  McLean  v.  Broad- 
head,  minority  report.  Mob.,  388.  In  Miller  v.  Elliot,  the  House  of  Rep- 
resentatives declared  the  registration  law  of  South  Carolina  unconsti- 
tutional because  unreasonable  and  restrictive  of  the  right  to  vote.  Row., 
504] 

2  [State  V.  Scarboro,  110  N.  C,  233;  Smith  v.  Board  County  Commis- 
sioners, 45  Fed.  Rep.,  725;  Piatt  v.  Good,  Smith,  650.] 

3  44  Mo.,  347. 

*  [The  Supreme  Court  of  the  State  of  Washington  has  held,  however, 
that  the  failure  of  the  Legislature  of  that  State  to  make  provision  for 
registration  in  accordance  with  a  requirement  of  the  State  Constitu- 
tution  will  not  operate  to  invalidate  an  election  held  without  such  reg- 
istration.   Stallcup  V.  Tacoma,  13  Waah.,  14L] 


CHAP.  VI.]  KEGULATI0N8.  103 

and  refusing  altogether  to  discharge  their  official  duties. 
But  it  is  hardly  safe  to  attempt  to  test  the  validity  of  a 
statute  by  presupposing  a  case  so  extreme  and  so  improbable 
as  the  refusal  of  a  sworn  officer  of  the  law  to  act.  Should 
such  a  case  occur,  of  course  a  mandamus  would  lie  to  compel 
the  recusant  officer  to  discharge  his  duties,  and  severe  penal- 
ties ought  to,  and  it  is  believed  generally  do,  follow  any  such 
failure  to  discharge  an  official  duty  so  grave  and  important.' 

Upon  this  point  the  Supreme  Court  of  Missouri,  in  the 
case  referred  to,  say :  "  "We  are  referred  to  no  case  where 
a  law  has  been  held  unconstitutional  for  the  reason  that  the 
officers  required  to  execute  it  had  neglected  their  duty,  or 
abused  their  trust,  nor  are  we  aware  of  any  principle  on 
which  to  base  such  a  decision."  ^ 

§  136.  A  case  may  occur  where  a  portion  of  the  legal 
voters  have,  without  their  fault,  and  in  spite  of  due  diligence 
on  their  part,  been  denied  the  privilege  of  registration.  In 
such  a  case,  if  the  voter  was  otherwise  qualified,  and  is 
clearly  shown  to  have  performed  all  the  acts  required  of  him 
by  the  law,  and  to  have  been  denied  registration  by  the 
wrongful  act  of  the  registering  officer,  it  would  seem  a  very 
unjust  thing  to  deny  him  the  right  to  vote.'  In  elections  for 
State  officers,  however,  under  a  Constitution  or  statute  which 
imperatively  requires  registration  as  a  qualification  for  vot- 
ing, it  may  be  that  the  voter's  only  remedy  would  be  found 
in  an  action  against  the  registering  officer  for  damages.* 

Where,  however,  a  portion  of  the  voters  of  a  given  pre- 
cinct are  thus  unjustly  denied  the  privilege  of  registration, 
and  another  portion  are  duly  registered  and  permitted  to 

1  See  chapters  on  Duties  and  Liability  of  OflBcers  of  Election. 

2  See  to  the  same  effect,  Nefzger  v.  Railroad  Co.,  36  la.,  642;  Zeiter  t\ 
Chapman,  54  Mo.,  502. 

3  [Stinson  v.  Sweeney,  17  Nev.,  309;  Sessinghaus  v.  Frost,  2  Ells.,  381.] 
*  People  V.  Koppelkam,  16  Mich.,  342;  State  v.  Stumpf,  23  Wis.,  630; 

State  V.  Hilmantel,  21  Wis.,  566.  An  irregularity  in  the  registration  of 
voters  or  in  holding  an  election  will  not  deprive  the  electors  of  their 
rights  or  render  the  election  invalid,  unless  it  is  shown  that  it  would 
have  changed  the  result.    Barnes  v.  Supervisors,  51  Miss.,  305. 


104:  ELECTIONS.  [CHAP.  VI. 

vote,  no  doubt  is  entertained  but  that  the  entire  poll  should 
be  rejected,  if  the  votes  of  the  former  class  cannot  be  counted, 
and  if  they  are  sufficiently  numerous  to  affect  the  result. 

§  137.  In  the  absence  of  any  positive  law  making  regis- 
tration imperative  as  a  qualification  for  voting,  it  is  a  very 
plain  proposition  that  the  wrongful  refusal  of  a  registering 
officer  to  register  a  legal  voter  who  has  complied  with  the 
law,  and  applies  for  registration,  ought  not  to  disfranchise 
such  voter.  The  offer  to  register  in  such  a  case  is  equiva- 
lent to  registration.  This  would  be  held  to  be  the  law  upon 
the  well-settled  principle  that  the  offer  to  perform  an  act 
which  depends  for  its  performance  upon  the  action  of  an- 
other person,  who  wrongfully  refuses  to  act,  is  equivalent 
to  its  performance.  The  Congress  of  the  United  States  has, 
however,  provided  against  injustice  of  this  kind  by  a  posi- 
tive statute,  which  must,  of  course,  control  all  Federal  elec- 
tions. By  the  third  section  of  the  Act  of  May  31,  1870,^  it 
is  provided  as  follows : 

"  That  whenever,  by  or  under  the  authority  of  the  Con- 
stitution or  laws  of  any  State,  or  the  laws  of  any  Territory, 
any  act  is  or  shall  be  required  to  be  done  by  any  citizen  as 
a  prerequisite  to  qualify  or  entitle  him  to  vote,  the  offer  of 
any  such  citizen  to  perform  the  act  required  to  be  done  as 
aforesaid  shall,  if  it  fail  to  be  carried  into  execution  by  rea- 
son of  the  wrongful  act  or  omission  of  the  person  or  officer 
charged  with  the  duty  of  receiving  or  permitting  such  per- 
formance, or  offer  to  perform,  or  acting  thereon,  be  deemed 
and  held  as  a  performance  in  law  of  such  act,  and  the  per- 
son so  offering  and  failing  as  aforesaid,  and  being  otherwise 
qualified,  shall  be  entitled  to  vote  in  the  same  manner  and 
to  the  same  extent  as  if  he  had  in  fact  performed  such  act." 

It  is  undoubtedly  necessary  that  a  person  who,  having 
been  refused  registration,  seeks  to  have  his  vote  counted 
under  this  statute,  should  prove  that  he  actually  and  person- 
ally applied  to  the  proper  board  or  officer  for  registration, 

» 16  Stat  at  Large,  p.  140. 


CHAP.  VI.]  KEGULATIONS. 


105 


and  offered  to  make  such  proof,  or  perform  such  acts,  as  the 
law  required  of  him ;  that  he  was  in  fact  legally  qualified 
to  vote  and  entitled  to  registration,  and  that  registration 
was  refused.  In  other  words,  it  must  appear  that  the  voter 
did,  or  offered  to  do,  all  that  the  law  required  at  his  hands, 
and  that  his  failure  to  be  registered  was  the  fault  of  the 
board  or  officer  of  registration.^  Nor  is  it  enough  that  he 
demanded  registration  of  the  proper  officer  or  board  and 
was  refused.  It  must  also  appear,  before  his  vote  can  be 
counted  as  if  cast,  that  he  offered  his  vote  at  the  proper 
time  and  place,  or  used  proper  diligence  in  endeavoring  to 
do  so.' 

§  138.  The  statute  of  Michigan  of  1851  provided  that 
"  if  any  person  offering  to  vote  shall  be  challenged  as  un- 
qualified, etc.,  the  chairman  of  the  board  of  inspectors  shall 
declare  to  the  person  so  challenged  the  constitutional  quali- 
fications of  an  elector,"  after  which,  if  he  insists  upon  his 
right  to  vote,  the  inspectors  are  required  to  tender  him  the 
statutory  oath.  Subsequently,  in  1859,  the  Legislature  of 
the  same  State  passed  a  registry  law  which,  among  other 
things,  provided  "  that  the  vote  of  no  person  shall  be  re- 
ceived whose  name  is  not  registered."  Under  these  two 
statutes  it  was  held  that  the  inspectors  were  not  bound  to 
administer  the  oath  to  an  unregistered  voter,  though  he  de- 
manded it.' 

§  139.  Eegistration  must  be  made  at  the  time  and  in  the 
manner  substantially  as  prescribed  by  the  statute.* 

It  is  also  in  general  essential  to  the  validity  of  a  registra- 
tion that  it  be  conducted  at  the  place  fixed  in  the  notice 
given ;  but  it  has  been  held  that  where  notice  was  given  by 
a  registrar  that  the  registration  of  voters  would  take  place 
at  his  residence,  and  where  he  kept  the  books  and  actually 
registered  the  voters  at  his  store  some  three  hundred  yards 

1  [State  V.  Scarborough,  110  N.  C,  232.] 
2[Pos«,  Sec.  162.] 

3  People  V.  Wattles,  13  Mich.,  446. 
*  State  V.  Commissioners,  20  Fla.,  859, 


106  ELECTIONS.  [chap.  VI. 

distant,  he  having  left  word  at  the  house  for  persons  apply- 
ing there  to  come  to  the  store,  the  irregularity  did  not  vitiate 
the  registration  or  the  election  held  under  it.^ 

The  rule  is  undoubtedly  the  same  in  such  cases  as  that 
which  prevails  respecting  the  place  of  holding  an  election. 
The  removal  to  another  place  near  by,  of  which  all  the 
voters  have  due  notice,  and  upon  which  they  act,  is  not  fatal. 
But  the  removal  to  a  place  some  distance  away,  of  which 
sufficient  notice  is  not  given,  and  by  means  of  which  a  por- 
tion of  the  electors  are  deprived  of  their  rights,  will  render 
the  registration  void. 

§  140.  The  provisions  of  the  registration  act,  in  so  far  as 
they  direct  the  mode  of  proceeding  in  the  matter  of  regis- 
tration, are  generally  to  be  regarded  as  directory,  and  not  as 
mandatory.^  It  is  not  to  be  presumed  that  the  Legislature 
in  prescribing  the  mode  of  proceeding  intended  to  make  the 
right  to  vote  of  persons  whose  names  are  on  the  registers 
depend  upon  the  observance  by  the  registration  officers  of 
all  the  minute  directions  respecting  the  preparation  of  the 
list  of  registered  voters.  To  consider  such  provisions  as 
mandatory  would  render  the  constitutional  right  of  suffrage 
liable  to  be  defeated  without  fault  of  the  elector  by  the 
fraud,  caprice  or  negligence  of  the  inspectors.^  The  same 
doctrine  is  strongly  asserted  in  State  v.  Baker  and  State  v. 
Kromer}  It  is  held  that  the  voters  are  not  bound  to  super- 
vise the  process  of  registration,  or  to  see  to  the  correction 
of  irregularities  and  defects  in  the  proceedings  of  the  regis- 
tration board.  Although  such  supervision  is  authorized,  it 
is  merely  voluntary  and  is  not  imposed  as  a  duty  or  as  a 
burthen  on  the  right  of  suffrage.     It  was  accordingly  laid 

1  Newsom  v.  Eamheart,  86  N.  C,  391. 

2  [Campbell  v.  Weaver,  Mob.,  455.  The  House  of  Representatives  of 
Congress,  in  case  of  Curtin  v.  Yocum,  1  Ells.,  416,  declared  the  registra- 
tion laws  of  the  State  of  Pennsylvania  to  be  directory  merely.  The 
Supreme  Court  of  Pennsylvania,  however,  in  the  ease  of  Cusick's  Ap- 
peal, 136  Pa.  St.,  459,  has  pronounced  these  laws  to  be  mandatory.] 

»  People  V.  Wilson,  62  N.  Y.  186;  reversing  Same  Case.  3  Hun,  437. 
<  38  Wis.,  71. 


OHAP.  VI.]  EEGULATIONS.  107 

down  in  those  cases  that  voters  whose  names  are  on  the 
register  de  facto  used  by  the  inspectors  at  the  election  as 
official  and  valid  need  not  inquire  further.  "  They  may  ac- 
cept the  registers  de  facto  as  they  accept  the  inspectors  de 
facto;  and  they  are  no  more  bound  to  inquire  into  the  quali- 
fications de  jure  of  the  registers  than  into  the  qualifications 
de  jure  of  the  inspectors.  It  is  enough  for  voters  to  find  at 
the  election  acting  inspectors  using  actual  registers,  virtute 
officii.  They  need  look  no  further  to  see  if  their  votes  be 
challenged  by  statute.  A  statute  cannot  challenge  them 
without  notice.  Their  constitutional  right  cannot  be  baffled 
by  latent  official  failure  or  defect ;  and  the  registry  law  sets 
no  such  trap  —  authorizes  none  such  —  for  the  constitutional 
right  which  it  was  passed  to  protect." 

§  141.  Where  the  registry  act  requires  that  a  voter  who 
has  not  been  registered  shall,  before  being  permitted  to  vote, 
make  proof  by  his  own  oath  and  that  of  a  householder  and 
registered  voter  that  he  is  an  inhabitant  of  the  district  in 
which  he  offers  to  vote,  the  election  officers  are  not  required 
to  accept  any  other  or  different  proof,  or  to  act  upon  their 
own  knowledge  in  the  premises.^ 

§  142.  We  have  thus  far  considered  for  the  most  part 
regulations  established  by  State  legislation.  It  remains  to 
consider  to  what  extent  Congress  is  authorized  to  prescribe 

1  Byler  v.  Asher,  47  111.,  101;  [Appeal  of  Cusick,  136  Pa.  St.,  459;  Mid- 
dendorf  s  Case,  4  Pa.  Dist.  R.,  78.  Nor  have  they  any  power  to  waive 
statutory  proofs.  In  re  Election  of  McDonough,  105  Pa.  St,  488.  But 
if  the  oflBcers  of  an  election  permit  a  person  to  vote  who  has  not  reg- 
istered and  without  any  proof  of  right,  and  it  does  not  appear  that  he 
was  challenged  or  any  objections  made  to  his  vote,  the  presumption 
must  be  that  he  was  a  legal  voter.  Lowe  v.  Wheeler,  2  Ells.,  61 ;  Perry 
V.  Ryan,  68  111.,  172;  Dale  v.  Irwin,  78  III,  171;  Clark  u  Robinson,  88  IlL, 
498.  For  a  contrary  rule,  see  In  re  Election  of  McDonough,  supra.  It 
was  held  by  the  House  of  Representatives  of  Congress,  in  case  of  Camp- 
bell V.  Weaver,  Mob.,  455,  that  where  an  elector,  acting  in  good  faith, 
and  honestly  supposing  himself  to  be  registered,  deposits  his  vote  and 
the  same  is  received  by  the  judges,  it  is  a  valid  vote.  But  where  the 
elector  does  not  act  in  good  faith,  and  knows  he  is  not  registered,  his 
vote  should  be  rejected]. 


108  ELECTIONS.  [chap.  VI. 

such  regulations,  bearing  in  mind  that  except  where  the 
paramount  authority  of  Congress  intervenes,  the  whole  sub- 
ject is  committed  to  the  States.  The  jurisdiction  of  Congress 
in  the  premises  is  derived  from  its  implied  power  to  guard 
the  purity  and  freedom  of  all  elections  of  members  of  any 
department  of  the  Federal  government,  and  from  Section  4, 
Article  1,  of  the  Constitution,  which  declares  that  "the times, 
places  and  manner  of  holding  elections  for  Senators  and  Rep- 
resentatives shall  be  prescribed  in  each  State  by  the  Legis- 
lature thereof;  but  the  Congress  may  at  any  time,  by  law, 
make  or  alter  such  regulations,  except  as  to  the  places  of 
choosing  Senators."  This  clause  of  the  Constitution  came 
before  the  Supreme  Court  of  the  United  States  for  construc- 
tion in  the  case  of  Ex  jparte  Siebold,'  and  it  was  upon  full 
consideration  held  that  Congress  has  power  at  any  time  to 
alter  or  add  to  such  regulations  as  may  have  been  prescribed 
by  the  State  without  taking  into  its  hands  the  exclusive  or 
complete  control  of  the  whole  subject.  It  was  held  that 
Congress  has  a  supervisory  power,  and  may  either  make,  by 
entire  new  regulations,  or  add  to,  alter  or  modify  the  regu- 
lations made  by  the  State.^  The  Court,  construing  the  con- 
stitutional provision,  said: 

"  It  seems  to  us  that  the  natural  sense  of  these  words  is 
the  contrary  of  that  assumed  by  the  counsel  of  the  petition- 

1 100  U.  S.,  371. 

2  [By  the  act  of  February  2, 1872  (R  S.  U.  S.,  Sec  25),  it  is  provided  that 
the  Tuesday  after  the  first  Monday  in  November,  1876,  is  established  as 
the  day  in  each  of  the  States  and  Territories  of  the  United  States  for 
the  election  of  Representatives  and  Delegates  to  the  Forty-fifth  Con- 
gress; and  that  the  Tuesday  next  after  the  first  Monday  in  November 
in  every  second  year  thereafter  is  established  as  the  day  for  the  elec- 
tion in  each  of  said  States  and  Territories  of  Representatives  and  Dele- 
gates to  Congress,  commencing  on  the  4th  day  of  March  thereafter. 
The  power  to  thus  regulate  the  time  for  the  election  of  members  of  the 
House  of  Representatives  is  vested,  as  has  been  shown,  in  Congress,  by 
the  provisions  of  Article  1,  Section  4,  of  the  Federal  Constitution.  By 
Section  6  of  the  act  of  March  8, 1875,  Section  25  is  modified  so  as  not  to 
apply  to  any  State  whose  Constitution  must  be  amended  in  order  to 
effect  a  change  in  the  day  of  election  of  State  officers  in  such  Stata    In 


CHAP.  VI.]  KEGULATIONS.  109 

ers.  After  first  authorizing  the  States  to  prescribe  the  regu- 
lations, it  is  added,  *  The  Congress  may  at  any  time,  by  law, 
7naJce  or  alter  such  regulations.'  ''Make  or  alter^  "What  is 
the  plain  meaning  of  these  words  ?  If  not  under  the  prepos- 
session of  some  abstract  theory  of  the  relations  between  the 
State  and  JSTational  governments,  we  should  not  have  any 
difficulty  in  understanding  them.  There  is  no  declaration 
that  the  regulations  shall  be  made  either  wholly  by  the  State 
Legislatures  or  wholly  by  Congress.  If  Congress  does  not 
interfere,  of  course  they  may  be  made  wholly  by  the  State ; 
but  if  it  chooses  to  interfere,  there  is  nothing  in  the  words 
to  prevent  its  doing  so,  either  wholly  or  partially.  On  the 
contrary,  their  necessary  implication  is  that  it  may  do  either. 
It  may  either  make  the  regulations,  or  it  may  alter  them. 
If  it  only  alters,  leaving,  as  manifest  convenience  requires, 
the  general  organization  of  the  polls  to  the  State,  there 
results  a  necessary  co-operation  of  the  two  governments  in 
regulating  the  subject.  But  no  repugnance  in  the  system  of 
regulations  can  arise  thence ;  for  the  power  of  Congress  over 
the  subject  is  paramount.  It  may  be  exercised  as  and  when 
Congress  sees  fit  to  exercise  it.  When  exercised,  the  action 
of  Congress,  so  far  as  it  extends  and  conflicts  with  the  reg- 
ulations of  the  State,  necessarily  supersedes  them.  This  is 
implied  in  the  power  to  '  make  or  alter.' 

"Suppose  the  Constitution  of  a  State  should  say,  *The 
first  Legislature  elected  under  this  Constitution  may  by  law 

the  case  of  Patterson  v.  Belford,  1  Ells.,  52,  it  was  held  that  the  provis- 
ions of  Section  25  were  not  repealed  by  the  enabling  act  for  Colorado, 
except  as  to  the  election  of  the  first  Representatives  from  that  State, 
and  that  the  time  for  the  election  of  all  subsequent  Representatives  for 
Colorado  was  fixed  by  said  statute.  In  Holmes  v.  Wilson,  1  Ells.,  322,  it 
was  decided  that  said  section,  by  reason  of  the  amendment  of  March 
3,  1875,  did  not  apply  to  elections  in  the  State  of  Iowa.  It  was  the  opin- 
ion of  the  majority  of  the  committee  in  the  latter  case  that  the  Fed- 
eral statute  would  not  apply  in  a  State  whose  Constitution  had  fixed 
the  date  of  the  election  of  any  State  officer,  and  that  it  was  not  neces- 
sary that  the  Constitution  should  fix  the  day  for  the  election  of  every 
State  officer  in  order  to  except  the  State  from  the  operation  of  the 
said  statute.] 


110  ELECTIONS.  .  [chap.  VI. 

regulate  the  election  of  members  of  the  two  houses ;  but  any 
subsequent  Legislature  may  make  or  alter  such  regulations,' — 
could  not  a  subsequent  Legislature  modify  the  regulations 
made  by  the  first  Legislature  without  making  an  entirely  new 
set  ?  Would  it  be  obliged  to  go  over  the  whole  subject  anew  ? 
Manifestly  not ;  it  could  alter  or  modify,  add  or  subtract,  in 
its  discretion.  The  greater  power,  of  making  wholly  new 
regulations,  would  include  the  lesser,  of  only  altering  or 
modifying  the  old.  The  new  law,  if  contrary  or  repugnant 
to  the  old,  would  so  far,  and  so  far  only,  take  its  place.  If 
consistent  with  it,  both  would  stand.  The  objection  so  often 
repeated,  that  such  an  application  of  Congressional  regula- 
tions to  those  previously  made  by  a  State  would  produce  a 
clashing  of  jurisdictions  and  a  conflict  of  rules,  loses  sight  of 
the  fact  that  the  regulations  made  by  Congress  are  para- 
mount to  those  made  by  the  State  Legislature ;  and  if  they 
conflict  therewith,  the  latter,  so  far  as  the  conflict  extends, 
cease  to  be  operative.  ISTo  clashing  can  possibly  arise.  There 
is  not  the  slightest  difficulty  in  a  harmonious  combination 
into  one  system  of  the  regulations  made  by  the  two  sover- 
eignties, any  more  than  there  is  in  the  case  of  prior  and  sub- 
sequent enactments  of  the  same  Legislature." 

§  14:3.  It  was  accordingly  held  that  Congress  had  power 
by  the  Constitution  to  enact  Section  5515  of  the  Revised 
Statutes,  which  makes  it  a  penal  offense  against  the  United 
States  for  any  officer  of  election,  at  an  election  held  for  a 
Representative  in  Congress,  to  neglect  to  perform  or  to  vio- 
late any  duty  in  regard  to  such  election,  whether  required  by 
a  law  of  the  State  or  of  the  United  States,  or  knowingly  to 
do  any  act  unauthorized  by  any  such  law,  with  intent  to  af- 
fect such  election,  or  to  make  a  fraudulent  certificate  of  the 
result,  etc.  Also  that  Congress  had  power  to  enact  Section 
5522  of  the  Revised  Statutes,  which  makes  it  a  penal  offense 
for  any  officer  or  other  person,  with  or  without  process,  to 
obstruct,  hinder,  prohibit  or  interfere  with  a  supervisor  of 
election,  or  marshal,  or  deputy  marshal,  in  the  performance 
of  any  duty  required  of  them  by  any  law  of  the  United 


CHAP.  VI.]  EEQULATIONS.  Ill 

States,  or  to  prevent  their  free  attendance  at  the  places  of 
registration  or  election.  It  was  also  held  that  the  several 
sections  of  the  Eevised  Statutes  authorizing  the  circuit 
courts  to  appoint  supervisors  of  such  elections,  and  the 
marshals  to  appoint  special  deputies  to  aid  and  assist  them, 
and  prescribing  the  duties  of  such  supervisors  and  deputy 
marshals,  were  constitutional  and  valid.^ 

§  144.  The  Court  in  the  same  case^  considered  the  ques- 
tion of  the  constitutionality  of  the  provision  of  the  Enforce- 
ment Act  which  authorizes  deputy  marshals  to  keep  the 
peace  at  the  polls,  and  held  the  same  to  be  valid.  The 
National  Government  has  the  right  to  use  physical  force  in 
any  part  of  the  United  States  to  compel  obedience  to  its 
laws,  and  to  carry  into  execution  the  powers  conferred  upon 
it  by  the  Constitution.  Counsel  had  earnestly  contended 
that  Congress  could  not  constitutionally  compel  said  officers 
of  an  election  to  observe  such  State  laws  of  election  as  were 
not  altered  by  Congress;  but  the  court  overruled  the  point, 
and  held  that  the  duties  to  be  performed  by  State  officers  of 

1  See,  also,  United  States  v.  Nicholson,  3  Woods,  C.  C,  215.  [Sections 
5515,  5520  and  5522,  together  with  all  other  sections  providing  for  the 
appointment  of  supervisors  of  elections  and  of  deputy  marshals  to  serve 
at  elections,  were  abolished  by  act  of  Congress,  February  8,  1894  The 
power  of  Congress  to  provide  for  the  punishment  of  any  State  officer 
of  elections  who  shall,  at  an  election  held  for  choosing  a  Representative 
in  Congress,  violate  a  State  statute  regulating  his  duties,  was  again  rec- 
ognized in  Ex  parte  Coy,  127  U.  S.,  731.  It  is  there  held  that  the  authority 
of  Congress  to  protect  the  poll-books  which  contain  the  vote  for  a  Mem- 
ber of  Congress,  from  the  danger  which  might  arise  from  the  exposure  of 
these  papers  to  the  chance  of  falsification  or  other  tampering,  is  beyond 
question.  And  a  conspiracy  to  induce  the  officers  of  the  election  hav- 
ing charge  of  such  poll-books  to  deliver  them  to  persons  who  have  no 
authority  to  receive  them  may  be  punished  by  indictment  in  the  Fed- 
eral Court,  under  the  provisions  of  sections  5440,  5511,  5512  and  5515  of 
Revised  Statutes  of  the  United  States.  And  it  was  further  held  that 
it  makes  no  difference  that  the  intent  may  have  been  to  defraud  some 
person  or  persons  who  were  candidates  for  State  offices.  The  report  of 
the  same  case  in  the  United  States  Circuit  Court  may  be  found  in  31 
Fed.  Rep.,  794.] 

2  [Ex  parte  Siebold.] 


112  ELECTIONS.  [chap.  VI. 

election  in  connection  with  the  election  of  Representatives  in 
Congress  were  duties  due  to  the  United  States  as  well  as  to 
the  State,  and  that  their  violation  is  an  offense  against  the 
United  States,  which  Congress  may  rightly  inhibit  and 
punish.  This,  as  the  Court  held,  necessarily  follows  from 
the  direct  interest  which  the  National  Government  has  in  the 
due  election  of  its  Representatives,  and  from  the  power 
which  the  Constitution  gives  to  Congress  over  this  particu- 
lar subject.^  And  the  same  doctrine  was  laid  down  in  Ex 
parte  Clark,2in  which  case  the  judgment  of  the  Circuit  Court 
of  the  United  States,  whereby  an  officer  of  election  had  been 
convicted,  under  Section  5515  of  the  Revised  Statutes  of  the 
United  States,  for  a  violation  of  the  law  of  Ohio  in  not 
conveying  the  ballot-box,  after  it  had  been  sealed  and  deliv- 
ered to  him  for  that  purpose,  to  the  count};^  clerk,  and  for 
allowing  it  to  be  broken  open,  was  affirmed.' 

§  145.  Such  is  the  law  as  finally  determined  by  the  Su- 
preme Court  respecting  the  power  of  Congress  to  regulate 
Federal  elections,  in  so  far  as  that  power  is  derived  from  the 
express  grant  found  in  Section  4,  Article  1,  of  the  Constitu- 
tion. It  remains  to  consider  the  nature  and  extent  of  the 
implied  power  of  Congress  in  the  premises,  growing  out  of 
its  right  and  duty  to  provide  for  the  fairness  and  purity  of 
the  election  of  Senators  and  Representatives  in  Congress,  and 
electors  for  President  and  Yice-President.  This  subject  has 
also  been  fully  considered  by  the  Supreme  Court  in  the  case 
of  Ex  parte  Yarbrough.*  In  that  case  the  rule  is  laid  down 
that,  in  construing  the  Constitution  of  the  United  States,  the 
doctrine  that  what  is  implied  is  as  much  a  part  of  the  in- 
strument as  what  is  expressed  is  a  necessity  by  reason  of 
the  inherent  inability  to  put  all  derivative  powers  into 

1  [Under  the  provisions  of  the  Enforcement  Act  deputy  United  States 
marshals  had  no  authority  to  mark  ballots  nor  to  see  them  marked. 
Attorney-General  v.  Mars,  99  Mich.,  538.] 

2  100  U.  S.,  399. 

'  [Upon  the  right  of  the  Federal  courts  to  punish  offenders  against 
the  ballot-box,  see  29  Am.  Law  Reg.,  337.] 
*  110  U.  S.,  651. 


CHAP.  VI.]  EEGULATIONS.  113 

words.  And  speaking  of  the  general  power  of  Congress  to 
enact  laws  for  the  regulation  of  Federal  elections,  the  Court 
said: 

"  That  a  government  whose  essential  character  is  republi- 
can, whose  executive  head  and  legislative  bod}'-  are  both 
elective,  whose  most  numerous  and  powerful  branch  of  the 
Legislature  is  elected  by  the  people  directly,  has  no  power 
by  appropriate  laws  to  secure  this  election  from  the  influence 
of  violence,  of  corruption,  and  of  fraud,  is  a  proposition  so 
startling  as  to  arrest  attention  and  demand  the  gravest  con- 
sideration. 

"  If  this  government  is  anything  more  than  a  mere  aggre- 
gation of  delegated  agents  of  other  States  and  governments, 
each  of  which  is  superior  to  the  general  government,  it  must 
have  the  power  to  protect  the  elections  on  which  its  exist- 
ence depends  from  violence  and  corruption. 

"  If  it  has  not  this  power,  it  is  left  helpless  before  the  two 
great  natural  and  historical  enemies  of  all  republics  —  open 
violence  and  insidious  corruption. 

"  The  proposition  that  if  it  has  no  such  power  is  supported 
by  the  old  argument,  often  heard,  often  repeated,  and  in  this 
court  never  assented  to,  that,  when  a  question  of  the  power 
of  Congress  arises,  the  advocate  of  the  power  must  be  able  to 
place  his  finger  on  words  which  expressly  grant  it.  The 
brief  of  counsel  before  us,  though  directed  to  the  authority 
of  that  body  to  pass  criminal  laws,  uses  the  same  language. 
Because  there  is  no  express  power  to  provide  for  preventing 
violence  exercised  on  the  voter  as  a  means  of  controlling  his 
vote,  no  such  law  can  be  enacted.  It  destroys  at  one  blow, 
in  construing  the  Constitution  of  the  United  States,  the  doc- 
trine universally  applied  to  all  instruments  of  writing,  that 
what  is  implied  is  as  much  a  part  of  the  instrument  as  what 
is  expressed.  This  principle,  in  its  application  to  the  Con- 
stitution of  the  United  States,  more  than  to  almost  any  other 
writing,  is  a  necessity,  by  reason  of  the  inherent  inability  to 
put  into  words  all  derivative  powers  —  a  difficulty  which  the 
instrument  itself  recognizes  by  conferring  on  Congress  the 
8 


114  ELECTIONS.  [OHAP.  VT. 

anthoritj  to  pass  all  laws  necessary  and  proper  to  carry  into 
execution  the  powers  expressly  granted  and  all  other  powers 
vested  in  the  government  or  any  branch  of  it  by  the  Con- 
stitution.^ 

"  We  know  of  no  express  authority  to  pass  laws  to  punish 
theft  or  burglary  of  the  treasury  of  the  United  States.  Is 
there  therefore  no  power  in  Congress  to  protect  the  treasury 
by  punishing  such  theft  and  burglary  ? 

"  Are  the  mails  of  the  United  States  and  the  money  car- 
ried in  them  to  be  left  to  the  mercy  of  robbers  and  of  thieves 
who  may  handle  the  mail  because  the  Constitution  contains 
no  express  words  of  power  in  Congress  to  enact  laws  for  the 
punishment  of  those  offenses?  The  principle,  if  sound, 
would  abolish  the  entire  criminal  jurisdiction  of  the  courts 
of  the  United  States  and  the  laws  which  confer  that  juris- 
diction." 

§  146.  It  was  accordingly  held  that  Section  5508  of  the 
Revised  Statutes,  which  provides  for  the  punishment  of  per- 
sons guilty  of  conspiracies  formed  for  the  purpose  of  depriv- 
ing any  citizen  of  any  right  or  privilege  secured  to  him  by 
the  Constitution  or  laws  of  the  United  States ;  and  Section 
5520,  which  provides  for  the  punishment  of  conspiracies 
formed  for  the  purpose  of  preventing  by  force,  intimidation 
or  threat  any  citizen  who  is  lawfully  entitled  to  vote  from 
giving  his  support  or  advocacy  in  a  legal  manner  toward  or 
in  favor  of  the  election  of  any  qualified  person  as  an  elector 
for  President  or  Yice-President,  or  as  a  member  of  the  Con- 
gress of  the  United  States,  or  to  injure  any  citizen  in  person 
or  property  on  account  of  such  support  or  advocacy,  are  con- 
stitutional and  valid. 

1  Art  1,  Sec.  8,  Clause  X8L 


CHAPTER  YII. 

REGULATIONS  —  Continued. 

§  147.    Statutory  regulation  necessary. 
148, 149.    Regulation  of  election  of  Senators  in  Congress 
150.    Mode  of  conducting  such  election. 
151, 152.    Act  of  July  25,  1866. 

153.    Time  and  place  of  all  elections  must  be  prescribed. 
153-157.    Invalidity  of  statutes  authorizing  a  soldier  to  vote  while 

absent  from  his  residence. 
158, 159.    Change  of  voting  place. 
160, 166.    Adjournment  of  election. 
161.    Premature  closing  of  polls. 
162-165.    Keeping  polls  open  after  lawful  hours. 
167.    Persons  not  voting  generally  bound  by  resxilt 
168-170.    Exceptions  to  this  rule. 

171.  Fraudulent  organization  of  election  board. 

172.  Irregular  reception  of  legal  votes. 

173, 174.  Mode  of  voting  where  separate  boxes  are  provided  by  law 
for  State  officers  and  members  of  Congress. 

175.  Voting  by  proxy  unknown  at  common  law,  but  allowed  in  cer- 

tain corporate  elections. 

176.  Time  and  place  are  of  the  substance. 
177-188.    Notice. 

178-181.    "When  the  prescribed  notice  is  necessary  and  when  not 

183-185.  Distinction  between  regular  and  special  election  as  to  no- 
tice required. 

188.  Power  of  Governor  to  fix  time  and  place  of  holding  election  for 
Representative  in  Congress. 

186, 187.  Time  and  place  of  such  election  vanst  be  fixed  by  a  compe> 
tent  authority. 

188.    Power  of  Military  Governor. 

189, 190.    Effect  of  change  in  Congressional  district. 

191.    Validity  of  act  of  June  25,  1842. 

191, 192.    Power  of  Congress  to  require  election  by  districta. 

193.    Application  of  registry  law  to  special  elections. 

194, 195.    "  General  election,"  meaning  of  phrase  considered. 

196.  Mode  of  conducting  special  elections. 

197.  What  questions  may  be  submitted  to  popular  vote. 
198-200.    Local-option  laws. 

201.    Return  of  votes  after  time  prescribed. 


116  ELECTIONS.  [chap.  VIL 

§  202.    Invalidity  of  partial  return. 
20S-205.    Effect  of  irregular  transmittal  of  returns. 
206-208.    Plurality  generally  suflBcient  to  elect. 

208.  Meaning  of  "  a  majority  of  the  voters  of  a  county." 

209.  And  of  "  the  qualified  voters  therein." 

210.  211.    Deciding  tie  vote  by  lot. 

212.    Minority  representation  and  cumulative  voting. 

218, 214.    Statutes  forbidding  use  of  money  to  influence  electiona 

215-217.    Bribery. 

218, 219.    Wager  upon  result  of  election. 

220.    Contracts  tending  to  corrupt  elections. 

222-225.    Effect  of  irregularities. 

226.    Numbering  ballots. 

227-229.    What  statutes  are  mandatory, 

227-229.    And  what  directory. 

230-233.    Depositing  ballot  in  wrong  box. 

234    Voting  by  mistake  in  wrong  precinct. 

235.  Adoption  of  erroneous  rule  by  oflScers  of  election  affecting  class 
of  voters. 

236-239.  Voter  not  generally  prejudiced  by  errors  or  mistakes  of  elec- 
tion oflBcers. 

240.  Unconstitutional  police  regulations. 

241.  Effect  of  violence  towards  election  officers. 

242.  Effect  of  reckless  disregard  of  essential  requirements. 

243.  Illustrations  of  rule  that  mere  irregularities  will  not  vitiate  an 

election. 

244.  Holding  of  elections  in  territory  acquired  from  foreign  govern- 

ment. 

245.  Holding  an  election  in  a  Territory  in  anticipation  of  admission 

into  the  Union. 

246.  Formation  of  State  Government  out  of  part  of  organized  Ter- 

ritory. 

247.  Effect  upon  remainder. 

§  147.  In  the  case  of  MoKune  v.  Welter^  it  was  laid  down 
that  an  election  cannot  take  place  without  statutory  regula- 
tion. All  the  efficacy  given  to  the  act  of  casting  a  ballot  is 
derived  from  the  law-making  power  and  through  legislative 
enactment,  and  the  Legislature  must  provide  for  and  regu- 
late the  conduct  of  an  election,  or  there  can  be  none.' 

illCal,  49. 

2  \Ex  parte  Kennedy,  23  Tex.  App.,  77.  Where  an  act  of  the  Legisla- 
ture, authorizing  the  holding  of  an  election,  did  not  take  effect  until 
the  lapse  of  sixty  days  after  its  passage,  an  election  held  under  the  act, 
but  before  the  expiration  of  the  sixty  days,  was  held  void.    Santa  Cruz 


CHAP,  VII. J  REGULATIONS.  117 

This  case  was  followed  in  Peojple  v.  Martin}  See,  also, 
Sawyer  v.  Haydon^  and  State  v.  Collins,^  where  it  is  held  that 
there  is  no  inherent  right  in  the  people  to  hold  an  election. 
A  volunteer  election  held  without  authority  of  law  is  void.* 

§  148.  The  manner  of  electing  United  States  Senators  is, 
in  the  absence  of  Congressional  action,  to  be  prescribed  in 
each  State  by  the  Legislature  thereof.  A  rule  adopted  by 
such  a  Legislature,  providing  that  "  a  majority  of  all  the  mem- 
bers elect  composing  the  two  houses  of  the  General  Assembly 
shall  be  necessary  to  determine  all  elections  devolving  upon 
that  body,"  is  a  legitimate  exercise  of  its  power  to  regulate 
the  manner  of  such  elections.  Under  this  rule,  where  there 
were  twenty-nine  votes  cast  in  the  joint  convention  for  David 
L.  Tulee,  and  twenty-nine  blank,  it  was  held  that  there  was 
no  election.' 

§  149.  The  Legislature  of  a  State  having  once  elected  a 
Senator  in  Congress  cannot  reconsider  its  action  and  elect 
another  person  afterwards.  The  moment  the  result  is  de- 
clared and  the  certificate  of  election  signed,  jurisdiction 
passes  from  the  State  Legislature  to  the  Senate  of  the  United 
States,  which  latter  body  is  to  judge  of  all  questions  touch- 
ing the  election,  returns  and  qualifications  of  its  members. 
On  the  19th  of  January,  1833,  Mr.  Eobbins  was  elected  a 
Senator  from  Khode  Island,  for  the  term  of  six  years  from 
March  4,  1834.  His  credentials  were  in  due  form.  In  Oc- 
tober, 1833,  the  General  Assembly  of  Rhode  Island  under- 
took to  set  aside  this  election,  and  to  elect  Mr.  Potter  Sena- 
tor, alleging  that  the  body  which  had  elected  Mr.  Robbins 
was  not  the  Legislature  of  Rhode  Island.  It  was  held,  after 
much  debate,  that  Mr.  Robbins  held  the  ^to^qv  prima  facie 

Water  Co.  v,  Blron,  74  Cal.,  222.  Where  the  Legislature  has  the  right 
to  prescribe  the  qualification  of  voters  at  a  municipal  election,  it  may 
also  provide  the  means  of  ascertaining  the  persons  who  possess  the 
qualifications  prescribed.    State  v.  Dillon,  33  Fla.,  545.] 

1 12  Cal.,  409. 

21Nev.,  75. 

»3Id.,  851. 

♦State  V.  Robinson,  1  Kan.,  17;  State  v.  Jenkins,  43  Mo.,  261. 

»  Yulee  V.  Mallory,  1  Bart,  608. 


118  ELECTIONS.  [chap.  VII. 

evidence  of  title  to  the  seat,  his  credentials  being  in  due 
form  and  of  prior  date  to  those  of  Mr.  Potter,  and  he  was 
accordingly  sworn  in  pending  the  investigation.  Mr.  Bob- 
bins was  ultimately  confirmed  in  his  seat.^  Where,  how- 
ever, two  bodies,  each  claiming  to  be  the  Legislature  of  a 
State,  have  each  chosen  a  Senator  in  Congress  to  represent 
such  State,  it  is  the  duty  of  the  Senate,  in  deciding  between 
such  claimants,  to  consider  and  determine  which  body  was, 
in  fact  and  in  law,  the  Legislature.^ 

§  150.  Under  that  clause  of  the  Constitution  providing 
that  Senators  may  be  "  chosen  by  the  Legislature  "  of  each 
State,  an  election  of  Senator,  to  be  valid,  must  be  partici- 
pated in  by  both  houses  of  the  Legislature  in  their  organized 
capacity.  It  is  not  enough  that  a  majority  of  the  members 
of  each  should  participate.' 

§  151.  By  an  act  of  Congress  approved  July  25,  1866,*  it 
is  provided  that  the  "  Legislature  of  each  State  which  shall 
be  chosen  next  preceding  the  expiration  of  the  time  for 
which  any  Senator  was  elected  to  represent  said  State  in 
Congress  shall,  on  the  second  Tuesday  after  the  meeting  and 
organization  thereof,  proceed  to  elect  a  Senator  in  Congress 
in  place  of  such  Senator  so  going  out  of  office," 

The  power  to  pass  this  act  is  derived  from  Section  4,  Article 
1,  of  the  Constitution,  which  authorizes  Congress  to  make  or 
alter  regulations  concerning  the  time  and  manner  of  holding 
elections  for  Senators.  Senators  must  be  chosen  by  the 
Legislature  which  shall  have  been  "  chosen  next  preceding 
the  expiration  of  the  term  "  of  the  Senator  elected  to  repre- 
sent the  State  in  Congress,  and  a  person  chosen  as  Senator 
by  any  other  Legislature  can  have  no  right  to  the  seat." 

§  152.  It  is  not  necessary  under  the  act  of  Congress  of 
July  25,  1866,  to  regulate  the  time  and  manner  of  holding 
elections  for  Senators  in  Congress,  that  the  election  by  the 

» Potter  V.  Bobbins,  CL  &  H.,  877. 

*  Spencer's  Case,  43d  Congress    [Smith,  473], 

'Case  of  Harlan,  1  Bart.,  621;  Case  of  Bright  and  Fitch,  Id.,  629, 
<  14  Stat,  at  Large,  243. 

•  Norwood's  Case,  Senate  Report,  No.  10,  42d  CongresSi 


CHAP.  VII.]  EEGULATIOXS.  119 

Legislature  should  actually  take  place  on  the  "  second  Tues- 
day after  its  organization."  It  is  enough  if  on  that  day  the 
Legislature  takes  action  on  the  subject,  and  actually  votes, 
though  unsuccessfully,  for  a  person  to  fill  the  office  of  Sena- 
tor.^ The  Legislature  must,  however,  continue  to  meet  in 
joint  convention  until  a  choice  is  reached.  The  principal 
purpose  of  the  act  of  Congress  was  to  deprive  one  house  of 
the  Legislature  of  the  power  to  prevent  an  election  by  re- 
fusing to  go  into  a  joint  convention  for  that  purpose. 

§  153.  It  is,  of  course,  essential  to  the  validity  of  an 
election  that  it  be  held  at  the  time,  and  in  the  place,  pro- 
vided by  law.*  An  interesting  and  important  question  arose, 
however,  in  many  of  the  States  of  the  Union,  during  the 
progress  of  the  great  rebellion,  as  to  the  validity  of  certain 
statutes  authorizing  persons  in  the  military  service  of  the 
United  States  to  vote  while  absent  from  their  States,  engaged 
in  such  service. 

The  constitutionality  of  these  statutes  generally  turned 
upon  the  question  whether  it  was  competent  for  a  State  Leg- 
islature to  authorize  a  citizen  to  vote  elsewhere  than  at  the 
place  of  his  residence.  In  the  Constitutions  of  most  of  the 
States  there  were  provisions  requiring  that  each  elector 
should  vote  at  the  place  of  his  residence,  and  not  elsewhere. 
The  Constitution  of  Michigan  provided  that  the  voter  should 
have  resided  "  in  the  township  or  ward  in  which  he  offers  to 
vote,  ten  days  next  preceding  such  election^  The  Legisla- 
ture of  that  State  enacted  that  persons  in  the  military  service 
possessing  the  qualifications  provided  by  the  Constitution 
should  be  allowed  to  vote  wherever  they  might  be,  whether 
within  the  limits  of  the  State  or  not.     In  the  case  of  Bald- 

1  Case  of  Abijah  Gilbert,  41st  Cong. 

2  [Sawyer  v.  State,  45  Ohio  St.,  343.  It  is  essential  to  the  validity  of 
an  election  that  it  be  held  at  the  time  and  in  the  place  provided  by 
law.  "When  the  time  and  place  are  not  fixed  by  law  but  are  fixed  by 
some  authority  named  in  the  statute,  it  is  essential  to  the  validity  of  the 
election  that  the  time  and  place  be  fixed  by  the  very  agency  designated 
by  law  and  none  other.  Snowball  v.  People,  147  111.,  260;  Stephens  v. 
People,  89  IlL,  337.  Upon  the  question  of  the  time  and  place  of  holding 
elections,  see  article  in  24  Cent.  Law  Journal,  487.] 


120  ELECTIONS.  [chap.  VTT. 

win  V.  Trowbridge^  the  House  of  Representatives  held  this 
statute  to  be  constitutional,  in  so  far  as  it  related  to  the 
election  of  Representatives  in  Congress.  The  decision  was 
placed  by  the  majority  of  the  committee  of  elections,  in  their 
report,  upon  the  ground  that  where  there  is  a  conflict  be- 
tween the  State  Constitution  and  a  legislative  act,  in  regard 
to  fixing  the  place  of  an  election  for  such  Representatives, 
the  power  of  the  Legislature  is  paramount.  This  was  held 
as  the  necessary  effect  of  Article  1,  Section  4,  of  the  Con- 
stitution of  the  United  States,  which  provides  as  follows: 

"  The  times,  places  and  manner  of  holding  elections  for 
Senators  and  Representatives  shall  be  prescribed  in  each 
State  by  the  Legislature  thereof;  but  the  Congress  may  at 
any  time,  by  law,  make  or  alter  such  regulations,  except  as 
to  the  places  of  choosing  Senators."  ^ 

§  154.  It  was  held  that  by  this  provision  the  power  is 
conferred  upon  the  Legislature  of  the  State,  and  that  in  fixing 
the  place  of  the  election  for  Representatives  in  Congress  it 
acted  under  and  derived  its  authorit}'^  from  the  Constitution 
of  the  United  States,  and  not  from  the  Constitution  of  Mich- 
igan. This  view  of  the  subject  was  ably  presented  in  the 
report  made  to  the  House  by  Mr.  Scofield  of  Pennsylvania. 
The  reasoning  of  the  report  may  be  thus  stated :  The  place 
of  the  election  for  Representative  in  Congress  is  to  be  fixed 
by  the  Legislature  of  the  State.  So  declares  the  National 
Constitution.  But  in  Michigan  the  convention  which  framed 
the  State  Constitution  undertook  to  determine  the  place 
where  all  such  elections  should  be  held.  This  was  an  at- 
tempt to  take  from  the  Legislature  the  power  plainly  con- 
ferred by  the  Federal  Constitution.  In  so  far,  therefore,  as  the 
constitutional  convention  undertook  to  fix  the  "  place  "  for 

13  Bart,  46. 

2  [The  Legislature  may  make  reasonable  changes  by  amendments  to 
existing  laws  in  respect  to  the  time  for  holding  the  election  of  officers. 
Such  change  will  not  be  deemed  unreasonable,  nor  the  act  making  it 
unconstitutional,  unless  so  great  as  to  raise  the  presumption  of  a  de- 
sign substantially  to  deprive  the  office  of  its  elective  character.  Jordan 
V.  Bailey,  37  Minn.,  174] 


CHAP.  VII.]  EEGULATI0N8.  121 

"  holding  elections  for  Representatives,"  it  went  beyond  its 
authority,  because  it  was  not  "  the  Legislature  of  the  State." 

§  155.  A  very  similar  question  arose  in  Shiel  v.  Thayer} 
In  that  case  the  Constitution  of  Oregon  had  fixed  the  time 
of  holding  the  election  for  Representative  in  Congress,  and 
the  Legislature  had  not  acted  upon  the  subject.  The  case  is, 
therefore,  to  be  distinguished  from  Baldwin  v.  Trowbridge^  ^ 
in  this,  that  the  former  was  not,  like  the  latter,  a  case  of  con- 
flict between  the  State  Constitution  and  any  act  of  the  State 
Legislature.  It  is  true  that  the  committee,  in  their  report, 
expressed  the  opinion  that  the  Constitution  of  the  State  had 
fixed  "  beyond  the  control  of  the  Legislature  "  the  time  for 
holding  the  election  for  Representative  in  Congress;  but 
this  point  was  not  necessarily  involved  in  the  case,  and  it  is 
evident  from  the  debate  in  the  House  that  there  was  a  wide 
difference  of  opinion  upon  it.  The  case  does  decide  that 
where  a  State  is  admitted  into  the  Union  with  a  Constitu- 
tion which  fixes  a  time  for  holding  the  election  for  Repre- 
sentatives in  Congress,  the  time  thus  fixed  will  be  regarded 
as  the  proper  and  legal  time,  but  it  does  not  decide,  because 
it  does  not  involve  the  question,  whether  that  time  can  be 
subsequently  changed  by  the  Legislature  of  the  State. 

§  156.  But  the  reasoning  in  Baldwin  v.  Trmabridgey 
whether  sound  or  not,  applies,  of  course,  only  to  elections 
for  Representatives  in  Congress,  since  it  was  within  the  prov- 
ince of  the  constitutional  convention  to  fix  the  times  and 
places  for  holding  all  other  elections;  and  it  would  seem 
quite  clear  that  under  the  Constitution  of  Michigan  the  act 
in  question,  in  so  far  as  it  applied  to  State  elections,  was 
unconstitutional.  Where  a  constitutional  provision  clearly 
requires  the  citizen  to  vote  at  the  place  of  his  residence,  it 
is  certainly  not  within  the  power  of  the  Legislature  to  pro- 
vide that  he  may  vote  elsewhere ;  and  that  a  soldier  has  no 
residence  in  the  field  or  camp  is  also  a  clear  proposition.'* 

1 1  Bart.,  349. 

2  Chase  v.  Miller,  41  Pa.  St.,  403;  Bourland  v.  Hildreth,  36  CaL,  161; 
Opinion  of  Judges,  SO  Conn.,  591;  Opinion  of  Jiistices,  44  N.  H.,  633; 
Twitchell  v.  Blodgett,  13  Mich.,  127;  Day  v.  Jones,  31  CaL,  261. 


122  ELECTIONS.  [chap.  VII 

In  Iowa  a  statute  of  this  character  was  held  constitutional, 
upon  the  ground  that  a  district  residence  was  not  required 
by  the  Constitution  of  that  State.^ 

§  157.  In  the  Constitutions  of  some  of  the  States  we  find 
provisions  not  only  fixing  the  qualifications  of  voters,  but 
also  fixing  the  place  of  voting.  Where  the  Constitution 
stops  with  an  enumeration  of  the  qualifications  of  an  elector, 
and  does  not  expressly  declare  that  the  elector  must  vote  at 
the  place  of  his  residence,  it  is  competent  for  the  Legislature 
to  provide  for  the  reception  of  votes  out  of  the  precinct  or 
county  of  his  residence.'^  So  that  the  question  must  turn 
upon  the  language  employed  in  the  particular  Constitution 
to  be  construed, 

§  158.  The  removal  of  the  place  of  voting  a  short  dis- 
tance from  that  fixed  by  law,  but  to  a  place  near  by  so  that 
no  one  was  misled,  is  not  fatal  to  the  election.'  In  Chad- 
wick  V.  Melmn,^  the  Supreme  Court  of  Pennsylvania  held 
that,  to  remove  the  place  of  election  three  miles  from  that 
designated  by  law,  or  from  a  village  to  a  place  a  half  mile 
therefrom,  and  across  a  considerable  stream,  or  from  a  desig- 
nated school-house  to  a  vacant  house  more  than  half  a  mile 
distant  therefrom,  without  authority  or  any  absolutely  con- 
trolling circumstances,  must  render  the  election  therein  void ; 
and  in  the  course  of  the  opinion  Thompson,  C.  J.,  says:  "A 
fixed  place,  it  seems  to  me,  is  as  absolutely  requisite,  accord- 
ing to  the  election  laws,  as  is  the  time  of  voting.  The  hold- 
ing of  elections  at  the  places  fixed  by  law  is  not  directory ; 
it  is  mandatory,  and  cannot  be  omitted  without  error.  I 
will  not  say  that,  in  case  of  the  destruction  of  a  designated 
building  on  the  eve  of  an  election,  the  election  might  not  be 
held  on  the  same  or  contiguous  ground  as  a  matter  of  neces- 

1  Morrison  u  Springer,  15  la.,  304    See,  also,  Lehman  v.  McBride,  15 
Ohio  St.,  573;  Chandler  v.  Main,  16  Wis.,  39a 

2  Morrison  v.  Springer,  supra. 

8  Preston  v.  Culbertson,  58  CaL,  198;  Simons  v.  People,  119  IlL,  617; 
[Ex  parte  Segars,  32  Tex.  Grim.  Rep.,  533;  Smith  u  Jackson,  Row.,  9], 
«  Brightly 's  Elec  Gas.,  251;  a  G.,  68  Pa.  St,  484. 


CHAP.  VII.]  IlEGtJLATIONS.  12d 

sity  —  neoessitas  non  habet  legem.  But  then  the  necessity 
must  be  absolute,  discarding  all  mere  ideas  of  convenience."  ^ 
The  same  rule  prevails  where  the  place  of  holding  the  elec- 
tion is  fixed  by  the  court,  or  by  a  board  or  officer,  thereunto 
duly  authorized  by  law.  When  once  legally  fixed  by  proper 
authority,  it  can  only  be  changed  by  proper  authority,  and 
in  the  manner  provided  by  law. 

§  159.  In  Illinois  it  has  been  held  that  the  removal  of  the 
place  of  holding  an  election  not  more  than  one  hundred  feet 
from  the  building  designated  as  the  proper  place  did  not  viti- 
ate the  poll,  it  appearing  that  all  the  voters  knew  where  the 
poll  was  opened,  as  it  was  readily  seen  from  the  lawful  place, 
and  made  manifest  by  the  crowd  going  and  returning  there- 
from, Ko  fraud  or  improper  motive  was  shown  to  produce 
the  change,  nor  did  any  voter  complain  that  he  was  deprived 
thereby  of  an  opportunity  to  vote.^ 

§  160,  A  statute  of  the  State  of  IS^ew  York  provided  that 
the  citizens  of  the  several  towns  qualified  to  vote  are  required 
annually  to  assemble  and  hold  town  meetings  in  their  respect- 
ive towns,  at  such  place  in  each  town  as  the  electors  thereof 
in  their  town  meeting  shall  from  time  to  tvme  appoint;  and 
if  at  any  annual  town  meeting  no  place  is  fixed  by  the  electors 
for  the  next  annual  town  meeting,  such  town  meeting  shall 
be  held  at  the  place  of  the  last  annual  town  meeting.  The 
electors  of  the  town  of  North  field,  at  their  annual  town  meet- 
ing in  1847,  omitted  to  fix  the  place  for  the  annual  town 
meeting  in  1848,  and  by  reason  of  this  omission  the  law 
fixed  the  place  at  the  Bull's  Head  tavern,  where  the  previous 

1  Journal  of  House  of  Representatives  of  Pennsylvania,  1856,  204,  See, 
also.  Beck  v.  McGhee;  Miller  v.  English,  1  Zab.  (N,  J,),  317;  Common- 
wealth V.  Commissioners,  5  Rawle,  75;  Marshall  v.  Kerns,  2  Swan,  68; 
Foster  v.  ScarfE,  15  Ohio  St.,  532;  [Walker  v.  Sanford,  78  Ga.,  165.  When 
it  is  provided  that  county  commissioners  must  construct  a  temporary 
room  to  be  used  as  a  polling  place,  if  there  is  no  room  of  adequate  size 
at  the  place  which  the  voters  of  the  district  have  designated  for  the 
election,  the  commissioners  are  not  at  liberty  to  rent  a  room  at  any 
other  place  within  the  district.    In  re  Egly,  158  Pa.  St.,  65]. 

2  Dale  V.  Irwin,  78  IlL,  170. 


124  ELECTIONS.  [chap.  VII. 

annual  meeting  was  held.  On  the  proper  day,  in  1848,  the 
electors  assembled  at  that  place  and  organized,  when  a  mo- 
tion was  made,  in  the  presence  of  the  electors  assembled, 
"  that  the  annual  town  meeting  for  the  year  1848  be  held  at 
the  place  aforesaid,  until  twelve  o'clock  at  noon  of  that  day 
and  then  be  adjourned  to  the  house  of  W.  C.  Martin,  within 
the  town,  where  it  shall  be  held  for  the  remainder  of  the 
day."  This  motion  was  carried,  and  the  election  was  ac- 
cordingly held  at  one  place  until  twelve  o'clock,  and  then 
adjourned  to  the  other,  and  there  held  the  remainder  of  the 
day.  The  Court  of  Appeals  of  New  York  held,  not  without 
some  hesitancy,  that  this  action  was  legal.^  Page,  J.,  in  de- 
livering the  opinion  in  this  case,  says:  "I  confess  that  I 
have  had  some  diflBculty  in  coming  to  this  conclusion,  and  I 
think  that  the  power  of  adjourning  a  town  meeting  to  an- 
other time  and  place  may,  under  peculiar  circumstances,  be 
oppressively  exercised,  and  lead  to  a  defeat  of  the  popular 
will.  This  power  ought  not  to  be  exercised  except  in  a  case 
of  extreme  necessity."  Under  the  same  statute  above  re- 
ferred to,  the  Supreme  Court  of  New  York  held  that  the 
electors,  on  the  town  meeting  being  opened,  had  a  right  to 
adjourn  the  meeting  to  the  next  day,  to  be  held  at  another 
place,  and  that  the  electors  were  the  exclusive  judges  of  the 
necessity  of  the  adjournment.^  In  both  these  cases,  how- 
ever, the  question  was  upon  the  construction  of  a  statute, 
and  it  is  very  clear  that  neither  the  time  nor  place  of  holding 
an  election  can  be  changed  after  being  once  legally  fixed, 
unless  such  change  is  authorized  by  statute ;  and  it  may  also 
be  observed  that  statutes  which  authorize  an  adjournment 
to  another  place  after  the  election  has  been  opened  are  very 
objectionable  and  inexpedient.  Some  of  the  electors  may 
not  attend  in  the  early  part  of  the  day,  and  may,  therefore, 
have  no  notice  of  the  change.  Statutes  ought  to  be,  and 
generally  are,  provided  to  allow  a  change  of  the  place  of 
opening  the  poUs,  or  holding  an  election,  in  case  of  necessity, 

iThe  People  v.  Martin,  5  N.  Y.,  1  Seld.,  22. 
•GoodeU  V.  Baker,  8  Cow.,  288. 


CHAP.  VTI.]  EEGULATIONS.  125 

such  as  might  arise  from  the  destruction  of  the  building 
designated  for  that  purpose;  hut,  aside  from  cases  of  this 
kind,  adjournments  or  changes  are  not  as  a  general  rule 
permitted. 

§  161.  Those  provisions  of  law  which  fix  the  time  or 
place  of  holding  elections  are  to  be  construed  as  mandatory, 
and  not  as  merely  directory.  The  reason  for  this  is  obvious. 
Every  voter  is  presumed  to  know  the  law,  and  to  be  thereby 
informed  as  to  the  time  when  and  the  place  where  he  may 
deposit  his  ballot;  but  if  that  time  or  place  be  changed 
without  proper  authority  and  due  notice,  no  voter  can  be 
held  as  legall}'^  bound  to  take  notice  of  the  change,  and  it 
can  never  be  known  how  many  voters  have  been  deceived 
thereby,  unless,  indeed,  all  the  persons  entitled  to  vote  should 
actually  attend  and  vote  at  the  illegal  place,  which  might, 
perhaps,  be  held  as  a  waiver  of  all  objection  thereto,  pro- 
vided the  place  was  within  the  voting  precinct.  As  to  the 
time  of  the  election,  of  course  the  day  cannot  be  changed 
even  by  the  consent  of  all  the  voters,  and  the  general  rule 
is,  that  if  the  polls  are  not  kept  open  for  as  many  hours  as 
the  law  directs,  and  if  legal  voters  in  numbers  suflQcient  to 
change  the  result,  or  to  render  it  doubtful,  are  thereby  de- 
prived of  the  privilege  of  voting,  the  election  must  be  set 
aside.  A  few  minutes'  delay  in  opening  the  polls  will  make 
no  difference,  but  several  hours'  delay  may  render  the  elec- 
tion void,  and  certainly  will  have  that  effect  if  the  party 
complaining  of  it  can  show  that  he  has  been  injured  thereby.^ 
§  162.  In  NeiJocuTn  v.  Kirtley^  it  was  held  that  the 
votes  of  two  electors  who,  according  to  the  testimony  of 
several  witnesses,  would  have  voted  for  contestant  if  the 
polls  had  not  been  closed  too  soon,  could  not  be  counted  as 
if  cast.  It  did  not  appear  that  the  electors  in  question  had 
presented  themselves  at  the  proper  voting  place,  within  the 

iMelvin's  Case,  68  Pa.  St,  833;  Juker  v.  Commonwealth,  20  Pa.  St, 
484;  Dickey  v,  Hurlburt,  5  CaL,  343;  People  v.  Murray,  15  CaL,  321; 
Knowles  v.  Yeates,  31  CaL,  83. 

2 13  B.  Monroe,  515b 


126  ELECTIONS.  [chap.  vn. 

hours  during  which  the  law  required  the  polls  to  be  kept 
open,  for  the  purpose  of  voting  for  contestant,  and  that  after 
doing  all  that  was  in  their  power  they  were  prevented  by 
the  fault  of  the  election  officers  from  so  voting.  If  these 
facts  had  appeared  the  question  would  have  been  very  dififer- 
ent  from  the  one  decided.  The  court  seems  to  have  placed 
great  stress  upon  the  fact  that  "  their  votes  were  not  offered 
to,  nor  taken  by,  the  officer  intrusted  by  law  with  the  office 
of  receiving  and  recording  them,"  and  very  properly,  as  that 
was  a  controlling  fact.  The  true  rule  upon  this  subject  has 
been  stated  in  another  connection  ^  and  is  this :  In  order  that 
a  ballot  not  actually  cast  shall  be  counted  as  if  cast,  it  must 
appear  that  the  voter  actually  offered  to  cast  it,  and  was  pre- 
vented from  so  doing  without  fault  on  his  part;  or  if  he  does 
not  actually  present  his  ballot  to  the  officers  of  the  election, 
that  he  endeavored  to  approach  the  polls  for  that  purpose, 
and  used  due  diligence  in  endeavoring  to  reach  the  polls,  but 
was  prevent^  from  so  doing.  Doubtless  a  rule  much  more 
lax  than  this  has  occasionally  been  adopted  in  legislative 
bodies,  but  every  departure  from  this  rule  as  here  stated  is, 
and  must  be,  both  erroneous  and  dangerous. 

§  163.  It  appears  that  a  statute  requiring  that  the  polls 
shall  be  opened  at  sunrise,  and  kept  open  until  the  setting 
of  the  sun,  is  so  far  directory  that,  before  an  election  can  be 
set  aside  because  of  a  deviation  from  the  statute  in  this 
respect,  it  must  be  shown  that  legal  votes  were  excluded, 
or  illegal  votes  received  in  consequence  thereof.*  Whether 
the  fact  of  closing  the  polls  before  the  hour  fixed  by  statute, 
or  keeping  them  open  after  such  hour,  will  of  itself  vitiate 
the  election,  must  depend  upon  the  terms  of  the  statute.  A 
slight  deviation  from  the  direction  of  the  statute  in  this 
respect  will  not  render  void  the  election,  unless  it  is  fraudu- 
lent, and  operates  to  deprive  legal  voters  of  their  rights,  or 
unless  the  statute  in  express  terms  makes  the  hour  of  open- 

» Sec  187. 

»  People  V.  Cook,  8  N.  Y.,  67;  [Soper  v.  Board  Ca  (Jom'rs,  4«  Minn., 
274J. 


CHAP.  VII.]  EBGULATI0N8.  137 

ing  and  closing  the  polls  of  the  essence  of  the  election.  See 
Cleland  v.  Porter} 

The  better  opinion  seems  to  be,  however  that  a  consider- 
able deviation  from  the  hours  fixed  by  law  for  keeping  open 
the  polls  must  render  the  election  void.  Thus,  in  Pennsyl- 
vania, it  has  been  determined  that  where  the  law  required 
the  polls  to  be  kept  open  until  ten  o'clock,  and  they  were 
closed  at  eight,  the  election  must  be  set  aside.^  So  also  if 
they  be  opened  at  a  much  later  hour  than  the  time  prescribed 
by  law.'  And  it  was  at  one  time  held  in  Ohio  that  if  the 
poUs  were  closed  for  any  purpose  within  the  hours  fixed  by 
law  for  holding  the  election,  it  would  render  it  illegal  and 
void.*  But  this  doctrine  was  overruled  in  Fry  v.  Booih^ 
where  it  was  held  that  the  statute  requiring  the  polls  to  be 
kept  open  between  the  hours  specified  during  the  entire  day 
was  so  far  directory  that  to  close  the  polls  during  the  dinner 
hour  does  not  vitiate  the  election. 

§  164.  "Where  the  polls  were  kept  open  after  the  proper 
hour  for  closing,  and  it  appeared  that  enough  votes  had  been 
cast  after  the  legal  hour  for  closing  the  polls  to  have  changed 
the  result,  the  election  was  set  aside.'  In  Illinois  it  has  been 
held,  under  similar  circumstances,  that  it  must  be  shown  af- 
firmatively that  votes  were  received  after  the  proper  hour 
which  did  change  the  result.' 

§  165.  From  all  the  somewhat  conflicting  authorities 
upon  the  subject,  the  following  may  be  gathered  as  the 
governing  rules : 

1.  If  the  statute  fixing  the  hours  during  which  the  polls 
shall  remain  open  expressly  declares  that  a  failure  in  this 
respect  shall  render  the  election  void,  it  must  be  strictly  en- 
forced. 

1 74  111.,  76. 

2Penn.  Dist  Election,  2  Pars.,  526;  S.  C,  68  Pa.  St.,  88. 

'  Chadwlck  v.  Melvin,  Bright.  Elec.  Caa,  251. 

♦State  V.  Ritt,  7  Am.  Law  Reg.,  88. 

5 19  Ohio  St.,  25. 

«  Locust  Ward  Election,  4  Penn.  Law  Journal,  341. 

7  Piatt  V.  People,  29  III,  54. 


128  ELECTIONS.  [chap.  VII. 

2.  But  in  the  absence  of  such  a  provision  in  the  statute, 
it  will  be  regarded  as  so  far  directory  only,  as  that,  unless 
the  deviation  from  the  legal  hours  has  affected  the  result,  it 
will  be  disregarded. 

3.  If  the  deviation  from  the  legal  hours  is  great,  or  even 
considerable,  the  presumption  will  be  that  it  has  affected 
the  result,  and  the  burthen  will  be  upon  him  who  seeks  to 
uphold  the  election  to  show  affirmatively  that  it  has  not.^ 
But  if  the  deviation  from  the  legal  hours  is  but  slight,  the 
presumption  will  be  that  it  has  not  affected  the  result,  and 
the  burthen  will  be  upon  him  who  attacks  the  validity  of 
the  election  to  show  affirmatively  the  contrary. 

4.  If  the  number  of  votes  illegally  cast  after  the  legal 
hours,  and  the  persons  for  whom  cast,  can  be  shown,  they 
may  be  rejected  from  the  count.^ 

§  166.  A  statute  of  Yirginia  in  force  in  1832  authorized 
the  sheriff,  in  case  the  electors  were  so  numerous  that  all 
could  not  be  polled  before  sunsetting,  or  in  case  by  rain,  or 
the  rising  of  water-courses,  many  of  the  electors  are  hindered 
from  attending,  to  adjourn  the  election  "  until  the  next  day, 
and  so  from  day  to  day  for  three  days,  Sundays  excluded, 
giving  public  notice  thereof  by  proclamation,"  etc.  Under 
this  provision  it  was  contended  that  the  polls  might  be  ad- 
journed from  day  to  day  for  three  days,  and  that  the  first 
day  is  to  be  excluded  in  computing  the  three  days.    But  it 

1  [Yeates  v.  Martin,  1  Ella,  52.] 

2  [Where  the  Constitution  of  Kentucky  provided, "  all  elections  by  the 
people  shall  be  held  between  6  o'clock  in  the  morning  and  7  o'clock  in 
tlft  evening,"  one  was  held  elected  who  had  received  the  most  votes  at 
7  P.  M.,  though  the  polling  place  was  kept  open  until  10,  and  when 
closed  the  other  party  had  the  majority.  Varney  v.  Justice,  86  Ky.,  896. 
But  where  the  notice  of  the  election  published  by  the  clerk  of  a  school 
district  notified  the  electors  that  the  polls  would  be  open  until  7  P.  M. 
instead  of  8  P.  M.,  as  the  statute  required,  the  clerk,  being  himself  a 
candidate  for  re-election,  cannot  take  advantage  of  his  own  error  and 
urge  the  illegality  of  the  election.  State  v.  Smith,  4  Wash.  St,  661. 
Even  though  the  result  may  not  have  been  affected,  yet,  if  a  radical 
change  is  made  in  the  hours,  the  election  is  void.  Hutchinson  v.  Wood- 
ruff, 57  N.  J.  L.,  530.] 


CHAP.  VII.]  EEGULATIONS.  129 

was  held  otherwise,  the  committee  being  of  the  opinion  that 
the  election  could  not  be  kept  open  for  any  purpose  more 
than  three  days.  Yotes  cast  on  t\iQ  fourth  day  after  an  ad- 
journment from  the  third  were  accordingly  excluded.* 

§  167.  If  an  election  is  held  according  to  law  and  a  fair 
opportunity  is  afforded  for  all  legal  voters  to  participate, 
those  who  do  not  vote  are  bound  by  the  result.^  It  has 
been  held  that  if  the  majority  expressly  dissent,  and  do  not 
vote,  the  election  of  the  minority  is  good.' 

§  168.  Yotes  must  be  cast  in  the  manner  provided  by 
law.  Under  a  statute  requiring  that  the  manner  of  voting 
shall  be  by  ballot,  votes  given  viva  voce  cannot  be  counted. 
In  the  case  of  an  election  by  a  board  of  county  commission- 
ers, of  a  county  treasurer,  it  was  held  in  Commonwealth  v. 
Head,  sujpra,  that  the  only  lawful  mode  of  voting,  under 
the  statute  of  Pennsylvania  governing  the  election,  was  by 
ballot;  and  that  inasmuch  as  the  majority  voted  viva  voce, 
the  minority  voting  by  ballot  would  elect,  even  if  that  mi- 
nority consisted  of  but  one  member  of  the  board.  It  seems, 
however,  that  in  case  of  an  election  by  a  corporation  or  a 
board  composed  of  a  definite  and  fixed  number  of  persons, 
a  quorum  should  vote.  Where  the  elective  body  consists  of 
an  indefinite  number  of  persons,  the  principle  of  Commor\r 
wealth  V.  Read  can  be  applied.  Accordingly  in  State  v. 
Binder  *  it  was  held  that,  in  the  absence  of  any  evidence  to 
the  contrary,  it  will  be  presumed  that  the  voters  voting  at 
an  election  were  all  the  legal  voters  of  the  city,  or  that  those 
who  did  not  see  fit  to  vote  acquiesced  in  the  action  of  those 
who  did  vote,  and  consequently  are  equally  bound  and  con- 
cluded by  the  result. 

1  Draper  v.  Johnson,  CI.  &  H.,  703. 

•^  First  Parish,  etc.  v.  Stearns,  21  Pick,  148;  Trustees,  etc  v.  Gibbs,  3 
Gush.  39;  [Patterson  v.  Belford,  1  Ells.,  52;  Biddle  v.  Wing,  CL  &  H. 
C07J. 

3  Oldknow  V.  Wainwright,  1  "Wm.  BL,  229.  And  see  Commonwealth  r. 
Read,  2  Ashmead,  261;  a  C,  Bright  Eleo.  Cas.,  126. 

*  38  Mo.,  45a 
9 


130  BLLECTIONS.  [CHAP.  VH. 

§  169.  This  doctrine,  however,  must  be  taken  with  some 
qualifications.  If,  for  example,  the  election  is  held  under 
such  circumstances  as  to  preclude  the  possibility  that  a 
majority  of  the  persons  entitled  to  vote  could  have  had  the 
opportunity  to  do  so,  it  is  void,  although  held  at  the  time 
and  place  provided  by  law.^  It  was  accordingly  held  in  a 
number  of  cases  arising  in  the  Southern  States  during  the 
rebellion,  that  where  the  larger  part  of  the  district  was  at 
the  time  of  the  election  in  the  armed  occupation  of  rebel 
forces,  an  election  attempted  to  be  held  in  a  portion  of  the 
district  not  so  occupied  was  void.^ 

§  170.  The  true  rule  is  this :  If  the  opportunity  to  vote  is 
given  to  all  alike,  and  if  those  who  abstain  from  voting  do 
so  of  their  own  fault  or  negligence,  then  those  who  do  attend 
and  vote  have  the  right  to  decide  the  result;  but  in  a  case 
where  those  who  fail  to  vote  constitute  a  large  proportion 
of  the  voting  population,  and  where  they  did  not  have  the 
opportunity  to  vote,  there  can  be  no  valid  election.  Elec- 
tions in  the  South  during  the  progress  of  the  rebellion  were 
accordingly  held  valid,  where  there  was  an  opportunity  for 
the  great  body  of  the  electors  to  participate.' 

§  171.  A  statute  of  Kansas  regulating  the  conduct  of  an 
election  held  for  the  purpose  of  determining  the  location  of 
a  county  seat  provided  that  the  voters  might  assemble  at 
9  o'clock  A.  M.  of  the  day  of  election,  in  each  precinct,  and 

*  [Where  legal  voters  are  present  at  the  polling  place,  but  are  unable 
to  reach  the  window  and  actually  tender  their  ballots  on  account  of 
fraudulent  challenges  unduly  prolonged  by  the  connivance  of  the 
judges,  their  votes  should  be  counted  upon  a  contest  So  far  as  Con- 
gressional elections  are  concerned,  the  offer  of  a  voter  otherwise  legally 
qualified  to  perform  any  act  necessary  as  a  prerequisite  to  voting  will 
be  considered  as  performance  of  the  act.  Waddill  v.  Wise,  Row.,  203, 
and  cases  there  cited.] 

«  Case  of  Upton,  1  Bart.,  368;  Case  of  Beach,  1  Bart,  391 ;  Case  of  Segar, 
1  Bart,  414;  Case  of  Segar,  1  Bart,  426;  Case  of  Segar,  1  Bart.,  577;  Case 
of  Cloud  &  Wing,  1  Bart,  455;  Case  of  McKenzie,  1  Bart,  460;  Case  of 
GraflBin,  ISart,  464;  Case  of  McKenzie  v.  Kitchen,  1  Bart,  468;  Case  of 
Chandler,  1  Bart.,  520. 

•Flanders  v.  Hahn,  1  Bart,  438;  Case  of  Clements,  Id.,  366. 


CHAP.  VII.]  KEGULATIO:>IS.  131 

select  from  among  themselves  their  judges  and  two  clerks  of 
election,  who,  after  being  duly  qualified,  should  conduct  the 
election.  Under  this  statute  it  was  decided  by  the  Supreme 
Court  of  Kansas  that  a  meeting  held  with  closed  doors  by 
the  adherents  of  one  of  the  towns  to  be  voted  for,  and  from 
which  meeting  all  the  adherents  of  the  other  town  to  be 
voted  for  were  excluded,  was  fraudulent  and  its  proceedings 
void.  And  an  election  held  by  the  people  who  were  excluded 
from  said  meeting,  conducted  by  the  officers  freely  chosen 
in  a  fair  and  public  manner,  was  held  valid.^ 

§  172.  The  fact  that  ballots  are  received  and  deposited 
in  the  ballot-box  in  an  irregular  manner  will  not  cause  their 
rejection,  if  it  appears  that  they  were  cast  in  good  faith  by 
legal  voters.^  Thus,  in  Kentucky  a  case  arose  where  two 
persons  who  were  qualified  voters  appeared  at  the  polls  be- 
fore the  judges  had  been  sworn,  and  while  one  of  the  judges 
was  absent.  The  two  voters  cast  their  votes  and  they  were 
deposited  in  the  ballot-box  by  the  judge  who  was  present, 
with  the  understanding  that  when  the  absent  judge  arrived 
and  all  had  been  sworn  they  would  ratify  the  act.  This  the 
two  judges  and  the  clerk  afterwards  did,  and  it  was  held  that 
the  votes  were  valid  and  were  properly  counted.' 

§  173.  Under  a  statute  requiring  that  separate  boxes  shall 
be  kept  for  the  deposit  of  ballots  for  State  officers  and  for 
members  of  Congress,  the  voter  must  hand  in  both  his  tick- 
ets at  one  and  the  same  time,  and  having  once  voted  for 
State  officers,  and  been  recorded  as  voting,  he  cannot  after- 
wards come  forward  and  claim  the  right  to  vote  for  Eepre- 
sentative  in  Congress.* 

§  174.  A  statute  providing  that  two  ballot-boxes  shall  be 
kept  at  each  poll,  one  for  the  reception  of  ballots  for  E-epre- 

1  State  V.  Harwood,  88  Kan.,  588;  13  Pac  Rep.,  212. 

2  [Lankford  v.  Gebhart,  130  Mo.,  621,  The  fact  that  election  officers 
place  a  ballot  in  the  wrong  ballot-box  by  mistake  will  not  vitiate  the 
ballot  nor  authorize  its  rejection.  Parvin  v.  Wimberg,  130  Ind.,  561 ; 
People  V.  Bates,  11  Mich.,  362;  Same  Case  with  note,  83  Am.  Dec.,  745.] 

»  Anderson  v.  Winfree,  85  Ky.,  597;  4  S.  W.  Rep.,  351. 
♦  Draper  v.  Johnson,  CI.  &  H.,  711. 


132  ELECTIONS.  [chap.  VII. 

sentative  in  Congress,  and  the  other  for  the  reception  of  bal- 
lots for  State  officers,  was  held  to  be  directory  only,  in  the 
case  of  Boyden  v.  Shober^  in  which  case  the  report  of  the 
committee  has  this  language : 

"  It  is  said  that  the  law  of  North  Carolina,  rightly  con- 
strued, required  that  two  ballot-boxes  should  have  been  kept 
at  each  poll,  and  that  all  ballots  for  members  of  Congress 
should  have  been  deposited  in  one,  and  all  ballots  for  electors 
for  President  and  Vice-President  in  the  other. 

"  There  seems  to  be  some  doubt  as  to  the  true  construction 
of  the  statute  of  ]^orth  Carolina,  but  assuming  that  the  con- 
struction contended  for  by  contestant  is  correct,  we  are  of 
opinion  that  the  statute  is  directory  only,  and  that  the  failure 
to  provide  two  ballot-boxes,  and  the  deposit  of  all  the  ballots 
in  one  box,  did  not  render  the  election  void,  in  the  absence 
of  fraud.  If  the  ballots  were  freely  cast,  if  they  were 
honestly  and  fairly  counted,  and  correctly  returned,  we 
should  be  unwilling  to  hold  that  a  mere  mistake  of  the 
election  officers  as  to  whether  the  baUots  should  go  into  one 
box  or  two  should  be  allowed  to  defeat  the  will  of  the  ma- 
jority." 2 

§  175.  At  common  law  voting  by  proxy  is  unknown,  and 
every  vote,  whether  given  by  a  stockholder  of  a  corporation, 
or  by  a  freeman  for  his  representative,  must  be  personally 
given.  A  corporation  may,  however,  by  a  provision  in  its 
charter,  provide  for  voting  by  proxy,  though  it  is,  to  say  the 
least,  very  doubtful  whether  a  provision  in  the  hy-loAJOs  of  a 
corporation,  providing  for  voting  by  proxy,  could  be  upheld. 
Upon  this  general  subject  see  authorities  cited  below.' 

§  1Y6.  It  must  be  conceded  by  all  that  time  and  place 
are  of  the  substance  of  every  election,  while  many  provisions 
which  appertain  to  the  manner  of  conducting  an  election 

12  Bart,  904 

«  [Young  V.  Deraing,  9  Utah,  204] 

'State  V.  Tudor,  5  Day,  329;  Taylor  v.  Griswold,  2  Green  (N.  J.),  223; 
Angell  &  Ames  on  Corp.,  Ch.  4  57;  Brown  v.  Commonwealth,  Bright 
Elec.  Gas.,  282;  Phillips  n  Wickham,  1  Paige,  590.    See,  also,  Ch.  XX 


OHAP.  VII.]  REGULATIONS.  133 

may  be  directory  only.^  It  does  not,  however,  follow  that 
formal  notice  of  the  time  and  place  of  holding  an  election  is 
always  essential  to  its  validity.  "Whether  it  is  so  or  not  de- 
pends upon  the  question  whether  the  want  of  formal  notice 
has  resulted  in  depriving  any  portion  of  the  electors  of  their 
rights.^  In  Indiana  it  was  held  that  an  election  for  county 
auditor  was  not  void  by  reason  of  an  omission  to  give  pub- 
lic notice  that  it  Avould  take  place.' 

§  177.  In  the  case  of  Foster  v.  Scarff^  it  was  held  that 
where  notice  was  not  given,  according  to  law,  of  an  election 
to  fill  a  vacancy  in  the  office  of  probate  judge,  and  where  it 
was  also  apparent  that  the  great  body  of  the  voters  had  in 
fact  no  notice,  and  were  not  aware  that  the  oflBce  was  to  be 
filled,  and  where  a  small  number  cast  their  votes  for  a  single 
candidate,  and  no  votes  were  cast  for  any  other,  the  election 
was  void.  But  the  Court,  Brinkerhoff,  J.,  says :  "  In  de- 
ciding this  case,  however,  we  do  not  intend  to  go  beyond  the 
case  before  us  as  presented  by  its  own  peculiar  facts.  We 
do  not  intend  to  hold,  nor  are  we  of  opinion,  that  the  notice 
by  proclamation,  as  prescribed  by  law,  is  jper  se,  and  in  all 
supposable  cases,  necessary  to  the  validity  of  an  election ;  if 
such  were  the  law^,  it  would  always  be  in  the  power  of  a  min- 
isterial officer  by  his  malfeasance  to  prevent  a  legal  election. 
We  have  no  doubt  that  where  an  election  is  held  in  other  re- 
spects as  prescribed  by  law,  and  notice  in  fact  is  brought 
home  to  the  great  body  of  the  electors,  though  derived 
through  means  other  than  the  proclamation  which  the  law 
prescribes,  such  election  will  be  valid.  But  where,  as  in 
this  case,  there  was  no  notice,  either  by  proclamation  or  in 
fact,  and  it  is  obvious  that  the  great  body  of  electors  were 

1  Dickey  v.  Hulburt,  5  CaL,  343. 

» [City  of  Lafayette  v.  State,  69  Ind.,  218;  Ex  parte  White,  Z'i  Tex. 
Crim.  Rep.,  594;  Smith  v.  Crutcher,  92  Ky.,  586;  Berry  v.  McCixllough, 
94  Ky.,  247;  Wheat  v.  Smith,  50  Ark.,  266.] 

»  State  V.  Jones,  19  Ind.,  356.  See,  also.  People  v.  Cowles,  13  N.  Y.,  850; 
People  V.  Brenham,  3  CaL,  477;  People  v.  Hart  well,  13  Mich.,  508L 

<  15  Ohio  St.,  532. 


131  ELECTIONS.  [chap.  VII. 

misled  for  want  of  the  official  proclamation,  its  absence  be- 
comes such  an  irregularity  as  prevents  an  actual  choice  by 
the  electors,  prevents  an  actual  election  in  the  primary  sense 
of  that  word,  and  renders  invalid  any  semblance  of  an  elec- 
tion which  may  have  been  attempted  by  a  few,  and  which 
must  operate,  if  it  operate  at  all,  as  a  surprise  and  fraud  upon 
the  rights  of  the  many."  ^ 

§  178.  While  it  is  true  that  notice  is  essential  to  the  valid- 
ity of  an  election,  it  is  not  always  essential  that  the  particular 
form  or  manner  of  giving  notice  which  may  be  prescribed 
shall  be  followed.'  It  is  essential  that  the  electors  should  have 
notice  of  the  time,  place  and  objects  of  the  election  —  that 
is,  they  should  have  knowledge  of  them;  but  an  omission 
to  follow  the  particular  mode  provided  by  statute  for  pub. 
lishing  such  notice  may  not  render  the  election  void,  and 
will  not,  if  the  electors  have  actual  notice,  and  do,  in  fact, 
take  part  in  the  election.'  This  doctrine  was  laid  down 
very  broadly  by  the  Supreme  Court  of  Iowa,  in  Dishon  v. 
Smiths  The  Court  in  that  case  say :  "  The  courts  have  held 
that  the  voice  of  the  people  is  not  to  be  rejected  for  a  defect 
or  even  a  want  of  notice,  if  they  have,  in  truth,  been  called 

1  [At  an  election  held  in  the  defendant  village  the  official  ballots  con. 
tained  no  reference  to  the  office  of  police  justice,  although  an  election 
to  fill  such  office  was  to  be  had  at  that  time  in  accordance  with  the 
statute  and  resolution  of  the  board  of  trustees;  nor  was  such  office 
named  in  the  notice  of  election,  no  nomination  having  been  made  there- 
for. Notwithstanding  this,  forty-four  votes  were  cast  for  the  relator 
by  pasters  upon  the  official  ballots.  Held,  that  relator's  election  was 
valid  and  he  was  entitled  to  the  office.  People  v.  Village  of  Wappinger 
Falls,  83  Hun,  130.] 

2  [People  V.  Avery,  106  Mich.,  572.] 

8  An  election  will  not  be  set  aside  because  the  law  requiring  the  giving 
of  notice  thereof  has  not  been  strictly  followed,  if  such  notice  was  given 
as  that  the  great  body  of  the  electors  were  in  fact  informed  of  the  time, 
place  and  purpose  of  the  election.  Commonwealth  v.  Smith,  133  Mass., 
289;  [Welsh  v.  Wetzel,  29  W.  Va.,  63;  Seymour  v.  City  of  Tacoma,  6 
Wash.,  427;  Woodward  v.  Fruitable  Sanitary  Dist.,  99  CaL,  554;  In  re 
Mitchell,  81  Hun,  401;  State  v.  Carroll,  17  R  L,  591;  Williams  v.  Shoudy, 
12  Wash.,  362]. 

<  10  Iowa,  212. 


CHAP.  VII.]  EEGULATIONS.  135 

upon  and  have  spoken.  In  the  present  case,  whether  there 
were  notices  or  not,  there  was  an  election,  and  the  people 
of  the  county  voted,  and  it  is  not  alleged  that  any  portion 
of  them  failed  in  knowledge  of  the  pendency  of  the  question, 
or  to  exercise  their  franchise." 

§  1Y9.  It  is  doubtless  perfectly  true  that  where  the  elec- 
tion has  been  held  at  the  proper  time  and  the  proper  place, 
and  the  electors  have  had  notice  and  participated  in  it,  the 
want  of  such  notice  as  the  law  provides  will  not  render  it 
void.  But  if  appear  that  due  notice  has  not  been  given, 
and  that  a  portion  of  the  electors  have  been  thereby  de- 
prived of  their  right  to  vote,  and  particularly  if  the  number 
thus  deprived  is  sufficient  to  have  changed  the  result  if  they 
had  voted  on  one  side  or  the  other,  in  such  a  case  the  elec- 
tion is  clearly  void.^ 

§  180.  The  general  rule  upon  this  subject  is  given  by 
Judge  Cooley,  as  follows :  "  Where,  by  the  express  provision 
of  the  statute,  the  election  is  to  be  held  after  proclamation, 
or  notice,  announcing  the  time  or  the  place,  or  both,  and 
where  no  such  proclamation  has  been  made,  or  notice  given, 
the  election  is  void.  But  where  both  the  time  and  the  place 
of  an  election  are  prescribed  by  law,  every  voter  has  a  right 
to  take  notice  of  the  law,  and  to  deposit  his  ballot  at  the 
time  and  place  appointed,  notwithstanding  the  officer  whose 
duty  it  is  to  give  notice  of  the  election  has  failed  in  that 
duty.^  The  right  to  hold  the  election  in  such  a  case  is  de- 
rived from  the  law,  and  not  from  the  notice.^  And  this  rule 
will  apply  to  an  election  to  fill  a  vacancy,  if  the  same  occurs 
long  enough  before  the  election  to  have  become  generally 
notorious,  and  if  it  was  in  fact  generally  known."  * 

§  181.  The  doctrine  that  want  of  formal  notice  of  an  elec- 
tion will  not  render  the  election  void  unless  it  appear  that 

1  [Where  a  posted  notice  states  in  one  place  that  the  election  will 
be  held  in  the  school-house  of  the  town,  and  states  in  another  place  that 
it  will  be  held  at  the  town  hall,  an  election  held  in  pursuance  thereof 
is  void.    People  v.  Caruthers  School  Dist.,  103  Cal.,  184] 

2  [Strobach  v.  Herbert,  2  Ells.,  5;  State  v.  Lansing,  46  Neb.,  514] 

3  [Patterson  v.  Belford,  1  Ells.,  52.] 
*  Cooley,  Const  Lim.,  (503. 


136  ELEC110N8.  [chap.  VH. 

the  failure  to  give  such  notice  has,  in  fact,  either  changed  or 
rendered  doubtful  the  result  was  recognized  as  early  as  1796, 
by  the  House  of  Eepresentatives  of  the  United  States  in  Lyon 
V.  Smith}  In  that  case  it  appeared  that  no  notice  had  been 
given  of  the  time  and  place  of  holding  the  election  in  two 
towns  of  the  district;  but  as  it  did  not  appear  that  the  votes 
of  all  the  freemen  of  those  towns  could  have  changed  the 
result  if  duly  given,  the  House  refused  to  set  aside  the  elec- 
tion.^ 

§  182.  It  is,  of  course,  more  important  and  essential  that 
due  and  regular  notice  be  given  of  an  election  to  fill  a  va- 
cancy than  that  such  notice  be  given  of  the  regular  elec- 
tion provided  by  law,  for  the  obvious  reason  that  there  is 
less  probability  that  the  electors  will  be  informed  of  the 
former  without  such  notification.'  Accordingly,  we  find  in 
the  decisions  of  the  courts  some  conflict  as  to  the  validity  of 
a  special  election  to  fill  a  vacancy  which  is  held  without  the 

iCL&H.,  101. 

*The  following  additional  cases  maybe  consulted  on  the  general 
subject  of  notice  and  as  to  when  it  is  essential  to  the  validity  of  an 
election:  Matthews  v.  Board,  34  Kan.,  606;  People  v.  Crissey,  91  N.  Y., 
616,  634;  Jones  v.  Gridley,  20  Kan.,  584;  Morgan  v.  Board,  24  Kan.,  71 
Cooley's  Const.  Lim.,  758;  State  v.  Skirving,  19  Neb.,  497;  S.  C,  27  N.  W, 
Rep.,  723;  People  v.  "Wetherell,  14  Mich.,  48;  Secord  v.  Foutch,  44  Mich. 
89;  People  v.  Canvassers,  11  Mich,,  111;  State  v.  McKinney,  25  Wis.,  416 
Bolton  V.  Good,  41  N.  J.  Law,  296;  Barry  v.  Lauck,  5  Cold.  (Tenn.),  588 
Westbrook  v.  Rosborough,  14  Cal,  180;  Kenfield  v.  Irwin,  52  Cal.,  164 
People  V.  Thompson,  67  Cal.,  627;  Morgan  v.  Gloucester,  44  N.  J.  L. 
137;  Stephens  v.  People,  89  III,  337;  Marshall  Co.  v.  Cook,  38  III,  44 
Force  v.  Batavia,  61  111.,  99;  Hubbard  v.  Williamstown,  61  Wis.,  397 
Pratt  V.  S wanton,  15  Vt,  147;  Hadoux  v.  County  of  Clarke,  79  Va., 
677. 

'  [If  an  election  is  held  to  fill  a  vacancy  for  the  oflSce  of  a  justice  of 
the  peace  in  a  city  of  the  second  class,  at  any  other  election  than  at  the 
regular  city  election  for  the  election  of  justices  of  the  peace,  and  no 
official  proclamation  or  public  notice  is  given  of  the  election  to  fill  the 
vacancy,  and  less  than  one-third  of  the  electors  of  the  city  vote  for  a 
person  to  fill  the  vacancy,  held,  that  the  omission  to  give  any  official 
or  public  notice  of  the  election  to  fill  the  vacancy,  and  the  failure  of 
the  electors  to  participate  generally  in  the  election,  vitiates  the  same, 
and  the  person  claiming  the  office  of  justice  of  the  peace  under  such 
an  election  is  not  entitled  to  it.    Cook  v.  Mock,  40  E!an.,  472.] 


CHAP.  VII.]  BEQULATIONS.  137 

notice  provided  by  law.  In  Peojple  v,  Cowles^  it  was  held 
that  in  case  of  the  death  of  a  judge  of  the  Supreme  Court 
after  it  was  too  late  to  give  the  notice  required  for  filling 
the  vacancy  at  the  next  ensuing  election,  it  was  competent 
for  the  electors  to  take  notice  of  the  vacancy,  and  to  fill  it 
at  that  election. 

§  183.  This  case,  however,  was  decided  upon  the  ground 
that  the  Constitution  of  New  York  required  that,  in  the 
event  of  a  vacancy  in  the  office  of  judge  of  the  Supreme 
Court,  it  should  be  filled  "  at  the  next  general  election  of 
judges  *  *  *  by  election  for  the  residue  of  the  unex- 
pired term."  And  under  this  provision,  the  majority  of  the 
Court  seemed  to  be  of  the  opinion  that  all  electors  were 
bound  to  take  notice  of  a  vacancy  in  that  office  without  any 
formal  notice,  and  that  such  voters  as  did  so  had  the  right 
to  fill  such  vacancy,  although  it  occurred  but  a  very  short 
time  prior  to  the  election.  Such  may  be  the  true  construc- 
tion of  the  Constitution  of  New  York,  but  ordinarily,  and 
in  most  if  not  in  all  the  other  States,  there  must  be  either 
formal  notice  of  the  vacancy  and  of  the  time  of  filling  it, 
or  such  general  notoriety  as  will  amount  to  notice  to  the 
great  body  of  the  electors. 

§  184.  In  Michigan  it  was  held  that  the  default  of  a 
clerk,  in  publishing  notice  of  an  election,  to  make  mention 
of  an  existing  vacancy,  will  not  invalidate  the  election ;  but 
the  decision  was  put  upon  the  ground  that  there  was  in  fact 
such  publicity  as  to  amount  to  notice.^ 

But  in  Indiana  it  has  been  held  that  an  election  to  fiU  a 
vacancy  cannot  be  held  where  such  vacancy  did  not  occur 
long  enough  before  the  election  to  enable  the  proper  notice 
to  be  given.'  And  the  same  point  has  been  repeatedly  ruled 
in  California.* 

113N.  Y.,  359. 

2  People  V.  Hartwell,  12  Mich.,  508.  And  see  State  v.  Orris,  20  Wis., 
235;  State  v.  Goetz,  22  Id.,  363;  State  v.  Jones,  19  Ind.,  218. 

SBeal  u  Ray,  17  Ind.,  554. 

<  People  u  Porter,  6  CaL,  26;  People  v.  Weller,  11  Id.,  49;  People  v. 
Martin,  12  Id.,  409;  People  v.  Roseborough,  29  Id.,  415. 


138  ELECTIONS.  [chap.  VII. 

§  185.  In  the  case  of  MeKune  v.  Weller^  the  question 
whether  a  proclamation  giving  notice  of  the  holding  of  a 
special  election  held  to  fill  a  vacancy  caused  by  the  death 
of  the  incumbent  was  necessary  to  the  validity  of  such  elec- 
tion is  discussed  at  length.  The  authorities  upon  the  sub- 
ject are  there  reviewed  with  care,  and  the  conclusion  is 
reached  that  there  is  an  important  distinction  to  be  observed 
between  general  and  special  elections.'*  The  time,  place  and 
manner  of  holding  the  former  being  fixed  by  law,  the  elect- 
ors may,  and  indeed  must,  take  notice  of  them,  and  as  to 
such  elections  the  statutory  requirement  of  public  notice 
by  proclamation  or  otherwise  may  be  regarded  as  directory 
only.  But  it  was  held  that  the  statute  requiring  the  Gov- 
ernor to  issue  his  proclamation  of  election  to  fill  vacancies 
which  occur  not  in  the  ordinary  way  by  the  expiration  of 
the  term,  but  by  death  or  resignation  before  the  term  ex- 
pires, is  mandatory  and  an  essential  prerequisite  to  all  such 
elections. 

§  186.  It  was  held  by  the  House  of  Eepresentatives  of 
the  United  States,  after  an  exhaustive  discussion,  that  where 
the  Legislature  of  a  State  has  failed  to  provide  the  time^ 
place  and  manner  of  holding  an  election  to  fill  a  vacancy  oc- 
curring in  the  House,  that  the  Governor  of  such  State,  upon 
being  informed  of  the  vacancy,  may  issue  a  writ  of  election 
and  therein  fix  the  time  and  places  of  holding  such  elec- 
tion.' The  power  given  to  the  Governor  by  the  second  sec- 
tion of  the  first  article  of  the  Constitution  of  the  United 
States  to  issue  writs  of  election  to  fill  vacancies  carries  with 
it  the  power  to  fix  the  times  and  places  of  holding  such  elec- 
tion in  cases  where  such  times  and  places  are  not  fixed  by 
law. 

It  is  of  course  desirable,  and  indeed  necessary,  that  proo- 

1 11  CaL,  49. 

2  [In  special  elections  the  notice  called  for  by  the  law  is  absolutely 
essential  to  the  validity  of  the  election.  State  v.  Tucker,  33  Mo,  App., 
620.] 

»  Case  of  John  Hoge  of  Penn.,  CL  &  H.,  135. 


CHAP.  VII.]  REGULATIONS.  ,  139 

lamation  be  made  of  such  election,  or  that  it  appear  that  it 
was  generally  known  for  a  reasonable  length  of  time,  though 
in  the  case  just  referred  to  it  was  held  that  a  very  short  no- 
tice (only  two  or  three  days)  was  sufficient,  when  it  ap- 
peared that  the  election  was  fixed  for  the  same  day  as  the 
election  for  President  and  Vice-President  of  the  United 
States,  and  where  it  was  evident  that  the  great  mass  of  the 
electors  were  in  fact  apprised  of  it,  and  participated  in  it.^ 

§  187.  If  a  case  should  arise  where  no  authority,  either 
State  or  Federal,  has  fixed  either  the  time  or  place  of  elect- 
ing a  Representative  in  Congress,  no  election  could  be  legally 
held.  And  yet  if  in  such  an  event  the  electors  by  common 
consent  should  come  together  and  choose  a  Representative, 
the  House  might  validate  their  action  and  admit  their  chosen 
Representative.  Such  action  would  be  within  the  power, 
and  therefore  within  the  discretion,  of  the  House. 

§  188.  But  whether  a  military  Governor  may,  under  any 
circumstances,  order  or  fix  the  time  of  an  election  for  Rep- 
resentatives in  Congress,  has  been  much  discussed.  The 
better  opinion  seems  to  be  that  if  the  government  of  a  State 
has  been  disorganized  by  insurrection  and  rebellion,  or  other- 
wise, so  that  there  are  no  State  officials,  and  can  be  none 
until  an  election  occurs,  the  United  States  may  take  military 
control  of  the  territory  of  such  State  and  appoint  a  military 
Governor,  who  may  perform  such  acts  as  may  be  required 
of  the  Executive  of  such  State,  as  a  prerequisite  to  the  hold- 
ing of  an  election.  The  reason  for  this  doctrine  was  thus 
stated  by  the  report  of  the  Committee  of  Elections  in  Flarv- 
ders  V.  Hahn,  in  the  Thirty-seventh  Congress,^  and  again  re- 
peated in  case  of  M.  F.  Bonzcmo^  as  follows : 

"  Representation  is  one  of  the  very  essentials  of  a  repub- 
lican form  of  government,  and  no  one  doubts  that  the  United 
States  cannot  fulfill  this  obligation  without  guaranteeing  that 
representation  here.     It  was  in  fulfillment  of  this  obligation 

1  State  V.  Berg,  76  Mo.  136. 
2 1  Bart.,  446. 
3  2  Bart,  1. 


140  BLBonoNS.  [chap.  vn. 

that  the  armj  of  the  Union  entered  New  Orleans,  drove  ont 
the  rebel  usurpation,  and  restored  to  the  discharge  of  its  ap- 
propriate functions  the  civil  authority  there.  Its  work  is 
not  ended  till  there  is  representation  here.  It  cannot  secure 
that  representation  through  the  aid  of  a  rebel  Governor. 
Hence  the  necessity  for  a  military  Governor  to  discharge 
such  functions,  both  military  and  civil,  which  necessity  im- 
poses in  the  interim  between  the  absolute  reign  of  rebellion 
and  the  complete  restoration  of  law."  The  report  further 
shows  that  inasmuch  as  the  Confederate  Governor  could  not 
be  expected  to  call  an  election,  either  the  military  Governor 
must  call  it  or  no  election  could  be  had ;  and  the  committee 
said :  "  The  people  must  remain  unrepresented,  or  some  one 
must  assume  to  fix  a  time  to  hold  these  elections.  "Which 
alternative  approaches  nearest  to  republicanism,  nearest  to 
the  fulfillment  of  our  obligations  to  guarantee  a  republican 
form  of  government  to  that  people  —  closing  the  door  of  rep- 
resentation, or  recognizing  as  valid  the  time  fixed  by  the 
military  Governor?  Are  this  people  to  wait  for  representa- 
tion here  till  their  rebel  Governor  returns  to  his  loyalty  and 
appoints  a  day  for  an  election,  or  is  the  government  to  guar- 
antee that  representation  as  best  it  may  %  The  committee 
cannot  distinguish  between  this  act  of  the  military  Governor 
and  the  many  civil  functions  he  is  performing  every  day, 
acquiesced  in  by  everybody.  To  pronounce  this  illegal,  and 
refuse  to  recognize  it,  is  to  pronounce  his  whole  administra- 
tion void  and  a  usurpation.  But  necessity  put  him  there 
and  keeps  him  there." 

§  189.  In  the  case  of  Jared  Perkins  of  New  Hampshire^ 
the  following  facts  appeared:  On  the  2d  day  of  July, 
1846,  the  State  of  Kew  Hampshire  was  divided  by  an  act 
of  her  Legislature  into  four  Congressional  districts,  and  in 
March,  1849,  a  Representative  in  Congress  was  chosen  from 
each  of  said  districts,  and  the  gentlemen  so  chosen  took  their 
seats  as  members  of  the  Thirty-first  Congress.    In  July, 

1 1  Bart,  142. 


CHAP.  VII.]  EEGULATIONS.  141 

1850,  by  another  act  of  the  Legislature,  said  State  was  re- 
districted,  and  the  boundaries  of  the  several  districts  changed. 
In  September,  1850,  Hon.  James  Wilson,  who  was  the  Eep- 
resentative  from  the  old  third  district,  resigned.  A  vacancy 
having  been  thus  created,  the  Governor  ordered  an  election  to 
be  held  by  the  new  third  district  to  fill  it.  At  this  election  Mr. 
Perkins  was  chosen.  There  was  a  majority  report  from  the 
Committee  of  Elections  in  his  favor,  and  after  debate  in  the 
House  he  was  admitted  to  the  seat  by  the  very  close  vote  of 
98  to  90.  There  are  grave  reasons  for  questioning  the  sound- 
ness of  this  decision.  Let  us  suppose,  for  example,  that 
after  an  election  by  a  district  it  is  divided  into  two  equal 
parts,  and  one  half  placed  in  one  new  district  and  the  other 
half  in  another.  If  under  these  circumstances  a  vacancy 
occurs,  by  which  of  the  new  districts  shaU  it  be  filled  ?  Or 
we  may  suppose  that  the  territory  composing  a  district  may 
be  distributed  among  three,  four,  or  half-a-dozen  new  ones. 
In  such  cases  there  is  no  sound  principle  upon  which  to 
determine  which,  if  any,  of  the  new  districts  shaU  fill  a 
vacancy  which  may  occur  from  the  old.  The  true  rule,  there- 
fore, must  be  that  a  district  once  created,  and  having  elected 
a  Representative  in  Congress,  should  be  allowed  to  continue 
intact  for  the  purpose  of  filling  any  vacancy  which  may 
occur,  until  the  end  of  the  Congress  in  which  it  is  repre- 
sented. And  if  a  State  Legislature  shall  abolish  such  district 
after  it  has  elected  its  Eepresentative,  and  shall  make  no  pro- 
vision for  filling  a  vacancy,  it  may,  in  the  event  of  a  vacancy, 
be  obliged  to  go  unrepresented  for  the  time  being. 

§  190.  The  case  of  Jared  Perkins,  supra,  was  expressly 
overruled  in  the  more  recent  case  of  Hwnt  v.  Menard}  In 
this  latter  case  the  committee  said : 

"  The  act  of  the  Legislature  of  Louisiana  of  August  22, 
1868,  making  a  new  division  of  the  State  into  its  five  Con- 
gressional districts,  by  its  terms  purports  to  repeal  all  laws 
and  parts  of  laws  in  conflict  with  said  act,  but  is  silent  on 

13  Bart,  477. 


142  EixonoNS.  [chap.  vn. 

the  subject  of  vacancies  tb*t  might  occur  in  the  districts  as 
then  existing. 

"  The  language  of  the  minority  report  in  the  case  of  Per- 
hms  on  the  New  Hampshire  statute  is  appropriate  on  this 
point  as  well  as  on  this  o^se  generally,  and  we  quote  from 
it  as  follows : 

" '  It  does  not  purport  to  provide  for  any  method  of  filling 
vacancies  that  might  ocrur  in  the  future,  and,  beyond  all 
question,  it  was  understood  as  providing  only  for  the  election 
of  members  of  future  CoT<gresses.  Such  are  the  terms  of  the 
act,  and  such  must  alsc  be  its  spirit.  A  vacancy  in  the 
House  of  Representatives  is  the  occurrence  of  an  event  by 
which  a  portion  of  the  people  are  left  unrepresented,  and  the 
filling  of  that  vacancy  H  directed  by  the  Constitution  in  such 
explicit  language  as  f^quires  no  aid  from  State  enactments 
to  perfect  the  right.  The  second  section  of  the  first  article 
of  the  Constitution  certains  the  following  provision :  "  When 
vacancies  occur  in  tfae  representation  from  any  State,  the 
executive  authority  thereof  shall  issue  writs  of  election  to 
fill  such  vacancies."  This  is  the  only  provision  of  law  on 
the  subject  of  vacan-^Jes,  and  it  is  ample  and  sufiicient.  No 
act  of  the  Legislatuve  of  New  Hampshire  purports  to  inter- 
fere in  the  matter,,  and  the  act  of  July  ought  not,  in  our  be- 
lief, to  be  understood  as  requiring  the  vacancy  occasioned 
by  General  Wilsoa's  resignation  to  be  filled  by  any  other 
people  than  those  whose  Representative  he  was.  Had  such 
been  the  purpose  of  the  act,  we  believe  it  was  incompetent 
for  the  law-making  power  of  that  State  to  accomplish  the 
object  while  this  House  hold  the  right  to  judge  of  the  elec- 
tion of  its  members. 

" '  It  would  not  be  preservation  of  the  purity  of  the  elective 
franchise,  nor  would  it  be  a  just  guardianship  of  the  repub- 
lican principle  that  all  shall  have  a  right  to  be  represented, 
to  admit  the  power  of  a  State  Legislature  to  provide  that  a 
portion  of  the  people  should  have  two  Representatives  in 
Congress,  while  another  portion  should  have  none,  or  not  be 
represented  by  the  man  of  their  choice.    *    *    *    It  is, 


OHLAJP.  VII.]  REGULATIONS.  143 

besides,  in  disregard  of  the  law  of  Congress  of  June,  1842, 
which  declares  that  no  one  district  shall  be  entitled  to  two 
Representatives.  If  the  people  who  choose  a  Eepresentative 
are  not  entitled  to  fill  the  vacancy  happening  by  his  resigna- 
tion, it  is  impossible  to  tell  what  portion  of  the  population 
may  most  properly  exercise  this  privilege.  It  seems  to  be 
assumed  in  this  case  that  the  new  district  made  by  the  act 
of  July  11,  1850,  and  numbered  three,  has  the  right  to  send 
a  Representative  in  place  of  General  Wilson,  because  the 
number  corresponds  with  that  which  General  "Wilson  repre- 
sented. But  the  order  of  numbering  is  an  unimportant  cir- 
cumstance, and  the  first  or  the  fourth  district  might  have 
been  as  properly  called  the  third  as  any  other ;  yet  it  would 
be  a  strange  assertion  that,  on  this  account,  such  district 
would  be  authorized  to  have  two  Representatives  during  the 
remainder  of  the  Thirty-first  Congress.' 

"  This  reasoning,  which  your  committee  consider  as  sound 
and  pertinent,  applied  to  the  case  under  consideration  seems 
to  be  conclusive  against  this  election ;  and  it  may  also  be 
added  that  whatever  power  a  State  Legislature  may  have  in 
the  matter,  it  is  absurd  to  say  that  a  district,  when  once  es- 
tablished and  a  Representative  chosen  therein,  is  not  to  con- 
tinue for  the  whole  Congress  for  which  the  election  has 
once  been  operative.  No  election  to  fill  the  vacancy  caused 
by  the  death  of  Mr.  Mann  appears  to  have  been  notified  or 
held  in  the  whole  of  said  district  as  represented  by  him."  * 

§  191.  A  question  of  great  importance  arose  in  the 
Twenty-eighth  Congress,  as  to  the  constitutionality  of  the 
second  section  of  "  An  act  for  the  apportionment  of  Repre- 

1  [In  Pool  V.  Skinner,  Mob.,  65,  it  was  held  that  under  the  Constitution 
of  the  United  States  the  Governor  of  a  State  is  the  tribunal  to  deter- 
mine when  and  where  to  hold  an  election  to  fill  a  vacancy,  and  that 
the  House  of  Representatives  will  not  interfere  with  his  actions.  Con- 
sequently, when  the  Governor  of  North  Carolina  designated  in  the  writ 
of  election  the  counties  in  the  new  district  entitled  to  vote  to  fill  a 
vacancy  occasioned  by  the  death  of  a  member  elected  from  the  old  dis- 
trict, the  House  of  Representatives  acquiesced  in  the  Governor's  action 
without  inquiring  into  its  correctnesa] 


144:  ELECTIONS.  [CHAP.  VH. 

sentatives  among  the  several  States,  according  to  the  sixth 
census,"  approved  June  25,  1842.  That  section  provided  as 
follows : 

"  That  in  each  case  where  a  State  is  entitled  to  more  than 
one  Representative,  the  number  to  which  such  State  shall  be 
entitled  under  this  apportionment  shall  be  elected  hy  dis- 
tricts composed  of  contiguous  territory  y''  etc. 

The  laws  in  force  in  many  of  the  States  prior  to  the  pas- 
sage of  this  act  provided  for  the  election  of  Representatives 
upon  a  general  ticket,  to  be  voted  for  by  the  people  of  the 
State  at  large ;  and  the  States  of  New  Hampshire,  Georgia, 
Mississippi  and  Missouri  refused  to  change  their  system  in 
obedience  to  the  act  of  Congress,  and  elected  their  Represent- 
atives to  the  Twenty-eighth  Congress  in  the  old  way,  by  a 
general  ticket.  The  question  was  as  to  the  power  of  Congress 
to  abrogate  a  State  law  providing  for  an  election  of  Repre- 
sentatives upon  a  general  ticket,  and  to  require  the  State  to  di- 
vide its  territory  into  districts,  and  to  choose  Representatives 
by  districts ;  and  the  decision  of  this  question  depended  upon 
the  construction  of  the  fourth  section  of  the  first  article  of 
the  Constitution  of  the  United  States,  which  is  in  these 
words : 

"  The  times,  places  and  manner  of  holding  elections  for 
Senators  and  Representatives  shall  be  prescribed  in  each  State 
by  the  Legislature  thereof,  but  the  Congress  may,  at  any 
time,  by  law,  make  or  alter  such  regulations,  except  as  to 
the  places  of  choosing  Senators." 

The  majority  of  the  Committee  of  Elections  held  the  sec- 
ond section  of  the  apportionment  act  above  quoted  to  be 
unconstitutional  and  void,  and  this  view  was  ably  supported 
in  an  elaborate  report  submitted  by  Hon.  Stephen  A.  Doug- 
las of  Illinois.*  But  the  contrary  view  was  maintained  with 
scarcely  less  ability,  and,  in  the  opinion  of  the  writer  of  this 
treatise,  with  better  logic,  by  the  minority  of  the  commi^ 
tee,  whose  views  were  presented  by  Hon.  Garrett  Davis  of 

1 1  Bart,  47-5& 


CHAP.  VII.]  KEGULATIONS.  146 

Kentucky.^  The  House  did  not  pass  upon  the  resolutions 
submitted  by  the  committee,  but  the  members  who  had 
been  elected  in  disregard  of  the  act  of  Congress,  upon  a 
general  ticket,  were  allowed  to  serve  out  their  time.  It 
seems  quite  clear  that  the  Constitution  confers  upon  Con- 
gress power: 

1.  To  make  regulations  concerning  the  time,  place  and 
manner  of  holding  elections  for  Representatives.  This  power 
can  be  exercised,  and  was  doubtless  intended  to  be  exercised, 
in  the  absence  of  any  regulations  by  the  State  Legislature, 
but  the  language  of  the  Constitution  does  not  permit  us  to 
say  that  it  can  only  be  exercised  in  the  absence  of  State 
regulations. 

2.  To  alter  such  regulations  as  may  have  been  prescribed 
by  the  States  concerning  the  time,  place  and  manner  of  hold- 
ing such  elections.  This  power  is  legitimately  exercised 
when  a  regulation  requiring  Representatives  to  be  chosen 
by  the  people  of  a  State  at  large  is  so  altered  as  to  require 
that  such  Representatives  be  chosen  by  districts.^ 

§  192.  The  House  of  Representatives,  however,  in  the 
more  recent  case  of  Phelps  and  Cavanaugh  of  Minnesota,^ 
followed  the  ruling  of  the  majority  of  the  committee  in  the 
case  last  cited,  and  held  that  the  election  of  those  members 
by  the  State  at  large  in  disregard  of  the  act  of  Congress 
was  valid.  The  weight  of  authority,  so  far  as  the  action 
of  the  House  is  concerned,  is  therefore  in  favor  of  this  view, 
and  yet  it  is  manifest  that  these  rulings  have  been  influ- 
enced largely  by  the  consideration  that  to  have  decided  the 
other  way  would  have  left  States  for  the  time  being  unrep- 
resented. 

§  193.  A  statute  providing  for  a  special  election  to  be 
called  on  ten  days'  notice  will  be  construed  as  not  coming 
Nvithin  the  provisions  of  a  previously  enacted  registry  law, 

lid.,  55-69. 

2  Such  is  the  effect  of  the  rulings  of  the  Supreme  Court  of  the  United 
States  in  Ex  parte  Siebold,  100  U.  S.,  371,  and  Ex  parte  Clark,  Id.,  399. 
3 1  Bart.,  24a 
10 


146  ELECTIONS.  [chap.  VH. 

for  the  reason  that  it  would  be  impossible  to  make  the  reg- 
istry, give  the  statutory  notice  and  revise  the  lists  within 
ten  days.  Such  at  least  was  the  ruling  in  Illinois  in  the 
case  of  People  v.  Ohio  Grove^  and  it  is  probable  that  under 
the  provisions  of  none  of  the  registry  acts  in  this  country 
could  a  registration  be  legally  perfected  within  so  short  a 
period.  Of  course  where  a  registry  act  is  by  its  terms  to 
be  applied  to  all  elections  by  the  people,  it  must  be  applied 
to  an  election  subsequently  authorized,  unless  the  act  au- 
thorizing such  subsequent  election  contains  provisions  which 
make  it  impracticable  so  to  apply  it,  in  which  case  the  sub- 
sequent act  must  stand  and  be  held  as  modifj'^ing  the  regis- 
tration act. 

§  194.  It  sometimes  happens  that  a  statute  is  passed  pro- 
viding that  a  particular  officer  named  shall  be  chosen  each 
year  "  at  the  general  election,"  without  further  provision 
as  to  the  time.  In  most,  and  it  is  presumed  in  all  the  States, 
the  time  for  holding  the  general  election  is  fixed  by  a  con- 
stitutional provision,  and  there  can  be  no  room  for  doubt 
but  that  a  statute  fixing  the  election  of  an  officer  "  at  the 
general  election  "  should  be  construed  to  mean  on  whatever 
day  the  proper  authority  may  fix  as  the  day  for  that  election. 
And  hence  if,  after  the  passage  of  such  an  act,  the  time  for 
holding  the  general  election  is  changed,  the  time  for  holding 
the  election  of  the  particular  officer  named  would  be  changed 
with  it.  The  purpose  of  selecting  the  day  of  the  general 
election  in  such  cases  is  not  to  select  a  particular  day  of  the 
month  or  year,  but  to  provide  for  the  convenience  of  the 
people  by  holding  one  instead  of  several  elections.* 

§  195.  A  different  rule  prevails,  however,  where  a  statute 
provides  that  an  election  shall  occur  on  a  given  day  of  the 
month  every  year,  or  in  given  years,  even  though  the  day  is 
also  described  as  the  day  of  the  general  election.  Thus,  for 
example,  a  statute  of  Illinois  provided  that  certain  commis- 

151111,191. 

2  See  West  Virginia  Cases,  43d  Congress  [Smith,  108].  Also  Sawyer 
V.  Haydon,  1  Nev.,  75. 


CHAP.  Vir.]  EBGTJLATIONS.  147 

sioners  should  be  elected  "at  the  next  general  election,  on 
the  lirst  Monday  in  August,  1874,  and  every  year  thereafter," 
and  it  was  held  that  the  change  of  the  time  for  holding  the 
general  election  did  not  change  the  time  for  the  annual  elec- 
tion of  said  commissioners.  In  the  former  case  the  statute 
should  be  construed  as  fixing  the  day  of  the  general  election, 
and  not  a  particular  day  of  the  month;  but  in  the  latter,  the 
])articular  day  of  the  month  and  week  in  each  year  being 
specified,  it  must  be  presumed  that  the  term  "  general  elec- 
tion "  was  used  as  descriptive  of  the  election,  the  time  of 
holding  which  was  fixed  "  on  the  first  Monday  in  August " 
in  each  year.^ 

§  196.  Where  a  statute  authorizes  an  election  to  be  held 
by  a  county,  city  or  township  for  the  purpose  of  determin- 
ing a  given  question  —  as,  for  example,  whether  such  munici- 
pality shall  subscribe  to  the  stock  of  a  railroad  company  — 
and  where  such  statute  points  out  no  mode  for  conducting 
such  election,  it  has  been  held  that  it  should  be  conducted  in 
the  manner  prescribed  by  law  for  other  elections  by  the 
same  bodj'^.  For  example,  if  an  election  in  a  township  is 
held  for  such  a  purpose  under  a  statute  silent  as  to  the  man- 
mer  of  proceeding,  it  should  be  held  in  the  manner  town- 
ship elections  are  required  to  be  held,  in  the  election  of  their 
town  officers,  and  not  under  the  general  election  laws  of  the 
State.2  The  doctrine  of  this  case  is  that  where  the  Legislar 
ture  authorizes  a  township  or  other  corporate  body  to  hold 
an  election,  and  has  prescribed  no  mode,  it  is  to  be  presumed 
that  it  was  designed  to  authorize  it  to  be  conducted  in  the 
manner  usually  adopted  and  authorized  by  the  law  govern- 
ing the  action  of  the  body. 

§  197.  There  has  been  of  late  years  much  earnest  dis- 
cussion in  the  courts  of  this  country  as  to  what  questions 
may  be  submitted  to  a  popular  vote.  It  is  a  well-settled 
principle  that  legislative  power  cannot  be  delegated  or  trans- 
ferred from  the  Legislature  to  the  people  at  large.   Our  gov- 

1  People  V.  Sloan,  14  111.,  476. 

2  People  V.  Dutoher,  56  111.,  144. 


148  ELECTIONS.  [chap.  VII. 

ernments  are  republican  and  not  democratic.  Laws  must  be 
enacted  by  the  representatives  of  the  people,  and  not  by 
the  people  themselves.  Nor  can  any  State  change  this. 
Every  State  must  have  a  "republican  form  of  govern- 
ment,"—  this  is  the  requirement  of  the  ISTational  Constitu- 
tion, and  it  is  complied  with  only  by  that  form  of  State 
government  which  vests  the  law-making  power  in  the  rep- 
resentatives of  the  people.^ 

§  198.  While  the  correctness  of  the  general  rule  above 
stated  is  not  questioned  by  any  of  the  authorities,  there  is  a 
conflict  among  them  as  to  its  application  to  a  species  of 
legislation  now  becoming  very  common  in  this  country.  In 
several  of  the  States  acts  have  been  passed  to  confer  upon 
the  voters  of  cities  or  municipalities  the  power  to  decide,  by 
ballot,  whether  the  sale  of  intoxicating  liquors  shall  be 
licensed  or  not.  In  several  of  the  cases  above  cited,  acts  of 
this  character  are  held  to  be  unconstitutional  and  void. 

Such  was  the  ruling  in  the  cases  cited  from  Delaware, 
Pennsylvania  and  Iowa,  and  they  were  afterwards  followed 
by  the  Supreme  Courts  of  Indiana ^  and  California;^  but 
later  decisions  in  Pennsylvania  and  Indiana  are  the  other 
way,*  and  such  laws  are  generally  upheld  in  the  other  States.* 

In  the  latter  State,  however,  the  decision  is  put,  partly, 
upon  the  ground  that  all  laws  are  required  by  the  Constitu- 
tion to  "  have  a  uniform  operation,"  and,  inasmuch  as  some 
towns  or  cities  might  adopt  license,  and  others  vote  it  down, 
the  operation  of  the  law  was  held  not  to  be  uniform.     But, 

iRice  V.  Foster,  4  Harr.  (Del.),  479;  S.  C,  Bright  Elec.  Cas.,  3;  Parker 
V.  Commonwealth,  6  Pa.  St,  507;  Barto  v.  Himrod,  8  N.  Y.,  483;  Cincin 
nati,  etc.,  R.  R.  Co.  v.  Commissioners,  1  Ohio  St,  77,  84;  Geebrick  v. 
State,  5  la.,  491.  See,  also,  authorities  cited  in  note  to  case  of  Rice  v. 
Foster,  Briglit  Elec.  Caa,  24 

2  Maize  v.  State,  4  Ind.,  342. 

^  Ex  parte  Wall,  48  CaL,  279. 

♦Locke's  Appeal,  72  Pa.  St,  491;  a  C,  18  Am.  Rep.,  716;  Groesoh  r. 
State,  42  Ind.,  547. 

•For  citation  of  authorities  supporting  the  validity  of  local-option 
laws,  see  Cooley's  Const  Lim.  (5th  Ed.),  p.  148,  note  8. 


CHAP.  VII,]  REGULATIONS.  149 

on  the  other  hand,  there  are  decisions  holding  laws  of  this 
character  to  be  valid.    Of  this  class  are  the  cases  cited  below.' 

§  199.  These  cases  proceed  upon  the  theory  that  the  legis- 
lation referred  to  does  not  vest  the  law-making  power  in  the 
people  at  large,  but  only  confers  upon  cities  or  municipali- 
ties such  powers  as  may  properly  be  conferred  by  legisla- 
tive act.  It  is  enough  to  say  here  that  in  every  case  the  real 
question  is,  does  the  act  in  question  attempt  to  confer  upon 
the  people  at  large  the  power  to  make  laws,  or  the  power  to 
say  whether  or  not  an  act  of  the  Legislature  shall  have  the 
force  of  law?  If  it  does  plainly  attempt  to  do  this,  it  is 
null  and  void.  Upon  this  general  subject  the  reader  is  re- 
ferred to  the  authorities  below  in  addition  to  those  already 
cited.2 

§  200.  An  examination  of  all  the  cases  will  show  that 
the  rule  as  established  by  the  great  weight  of  authority  and 
reason  is  this :  In  any  case  where  the  Legislature  could  au- 
thorize a  municipality  to  adopt  a  particular  measure  as  a 
local  police  regulation,  it  may  enact  such  a  regulation  sub- 
ject to  the  adoption  or  rejection  thereof  by  the  people  of  the 
several  municipalities  in  the  State.  Judge  Cooley  expresses 
the  rule  thus: 

"  Such  laws  are  known  in  common  parlance  as  local-op- 
tion laws.  They  relate  to  subjects  which,  like  the  retailing 
of  intoxicating  drinks,  or  the  running  at  large  of  cattle  in 
the  highways,  may  be  differently  regarded  in  different  locali- 
ties, and  they  are  sustained  on  what  seems  to  us  the  impreg- 
nable ground  that  the  subject,  though  not  embraced  within 
the  ordinary  power  of  the  municipalities  to  make  by-laws 
and  ordinances,  is  nevertheless  within  the  class  of  police 
regulations  in  respect  to  which  it  is  proper  that  the  local 
judgment  should  control."  • 

1  Hammond  v.  Haines,  25  Md.,  541;  State  v.  Noyes,  10  Fost.  (N.  H.), 
279;  State  v.  O'Neall,  24  Wis.,  149. 

2  State  V.  Morris,  Common  Pleas,  Am.  Law  Reg.  (N.  S.),  Vol.  12,  page 
32;  State  v.  Parker,  26  Vt.,  357.  See,  also,  an  able  discussion  of  the  sub- 
ject in  American  Law  Register  (N.  S.),  Vol.  12,  page  129. 

» Cooley's  Const.  Lim.  (5th  Ed.),  p.  148. 


150  ELECTIONS.  [chap.  TII. 

§  201.  In  the  case  of  Brockenhrov^h  v.  Cabell,^  it  was  held 
that  where  the  State  law  required  votes  given  for  a  Repre- 
sentative in  Congress  to  be  returned  to  the  Secretary  of 
State  within  thirty  days  from  the  day  of  the  election,  the 
statute  was  directory  only,  and  that  legal  votes  returned  by 
the  proper  oflBcers  after  that  day  should  be  counted.  The 
same  rule  has  been  laid  down  in  many  cases  presenting 
kindred  questions,  and  the  point  is  well  settled .'^  In  the 
case  last  cited  it  was  distinctly  held  that,  inasmuch  as  the 
House  is  made,  by  the  Constitution,  the  exclusive  judge  of 
the  election  and  returns,  as  well  as  of  the  qualifications  of 
its  own  members,  the  returns  from  the  State  authorities 
must  be  regarded  2i^  prima  facie  evidence  only  of  what  they 
contain,  and  are  not  conclusive  on  the  House. 

And  in  Mallary  v.  Merrill '  it  was  held  that  votes  fairly 
given  to  a  party  may  be  counted  in  his  favor,  though  they 
ha/oe  never  heen  returned  to  the  proper  State  authorities,  the 
failure  to  make  such  return  not  being  chargeable  upon  such 
party. 

This  is  the  true  rule  as  applied  to  the  trial  of  contested 
election  cases,  but,  of  course,  has  no  application  to  the  mere 
matter  of  canvassing  votes  by  election  officers,  as  such  offi- 
cers must  be  governed  by  the  returns.  And  it  should  also 
be  understood  that  votes  cast,  but  not  returned,  must  be 
clearly  proven  by  evidence  other  than  the  return  before 
they  can  be  counted  even  by  a  tribunal  trying  a  contest. 

§  202.  As  will  be  seen  in  another  connection,  a  certifi- 
cate of  election  which  shows  that  it  is  based  upon  a  partial 
canvass  is  fataUy  defective,  because  a  full  canvass  might 
show  a  different  result.*  A  similar  rule  is  sometimes  applied 
to  the  return  from  a  county  which  embraces  a  number  of 
precincts  or  voting  places.     Thus,  in  Niblack  v.  WaUa^  a 

1 1  Bart,  79. 

2§§  225,  282;  Case  of  John  Richards,  CL  &  EL,  95;  Spaulding  v.  Mead, 
CL  &  H.,  157. 
» Id.,  328. 
♦§272. 
»42d  Congress    fSmith,  101]. 


CHAP.  Vn.]  KEGULA.TIONS.  151 

eounty  return  was  rejected  because  the  county  canvassers 
rejected  the  votes  of  three  precincts,  and  counted  that  of  two 
only.  Each  party  was  required  to  prove  his  vote  by  evidence 
other  than  the  return. 

§  203.  In  most  of  the  States  the  law  requires  that  county 
returns  shall  be  forwarded  to  the  Secretary  of  State  by  mail. 
The  question  has  been  raised  whether  under  such  a  statute 
a  return  can  be  received  and  counted  if  sent  by  private  con- 
veyance. In  Nihlack  v.  Walls  ^  the  return  from  one  of  the 
counties  which  should  have  been  sent  by  mail  was  not  only 
forwarded  by  private  conveyance,  but  was  addressed  to,  and 
received  by,  one  of  the  candidates,  and  by  him  handed  to  the 
Secretary  of  State.  Under  these  circumstances,  the  House 
ordered  further  evidence  to  be  produced  to  show  the  true 
state  of  the  poll.  And  in  Chavis  v.  Clever  ^  it  appeared  that 
the  statute  required  returns  to  be  sent  to  the  Secretary  of 
State  "  by  special  messenger."  This  provision  of  the  statute 
was  violated,  and  the  return  delivered  to  one  Moore,  an 
army  sutler,  and  by  him  sent,  hy  express,  to  the  Governor  of 
the  Territory,  who  delivered  it  to  the  Secretary.  These 
facts,  together  with  some  evidence  tending  to  show  that  the 
return  was  tampered  with  on  the  way,  were  deemed  suffi- 
cient to  exclude  it.  If,  however,  it  be  made  to  appear  on 
the  trial  of  a  contested  election  case  that  a  return  which  has 
been  sent  in  an  irregular  and  unlawful  Avay  has  not  been 
tampered  with,  but  is  in  fact  the  genuine  return  without  al- 
teration or  amendment,  duly  signed  and  certified,  it  will  not 
be  rejected  because  of  its  irregular  transmission.  It  is  the 
policy  of  the  law  to  discountenance  everything  which  af- 
fords an  opportunity  for  evil-disposed  persons  to  tamper 
with  ballot-boxes  or  returns,  and  for  this  reason  the  sound 
rule  would  probably  be  to  require  proof  of  the  genuineness 
of  all  such  returns  as  are  transmitted  through  private  and 
unauthorized  channels.' 

1 42d  Congress     [Smith,  101]. 

2  2  Bart.,  467,  469. 

3  [The  statute  of  Massachusetts  required  the  presiding  oflBcer  at  the 


152  ELECTIONS.  [chap.  vn. 

§  204.  Where  the  statute  directed  the  returns  of  an  elec- 
tion for  Kepresentatives  in  Congress  to  be  filed  with  the 
county  judge,  and  an  abstract  forwarded  to  the  Secretary  of 
State,  and  the  county  officers,  mistaking  their  duty,  forwarded 
the  original  returns  to  the  Secretary  of  State,  it  was  held 
that  this  did  not  vitiate  the  election,  or  furnish  proper 
ground  for  throwing  out  the  vote  of  the  entire  county.  In 
the  absence  of  fraud,  an  irregularity  of  this  character  not 
affecting  the  result  in  any  way  cannot  be  regarded  as  suffi- 
cient cause  for  rejecting  the  vote  of  a  county  or  even  of  a 
voting  precinct.^  The  statute  in  question  clearly  belonged 
to  that  class  of  statutory  provisions  concerning  the  conduct 
of  elections  which  are  directory  merely. 

§  205.  The  failure  or  refusal  of  the  proper  officer  to  issue 
a  certificate  of  election  to  a  person  duly  elected  to  an  office 
cannot  operate  to  deprive  such  person  of  his  rights.  The 
certificate  or  commission  is  the  best  but  not  the  only  evi- 
dence of  an  election,  and,  if  that  be  refused,  secondary  evi- 
dence is  admissible.^  Where,  therefore,  the  Governor  of 
Tennessee,  claiming  that  the  State  had  seceded  from  the 
Union,  refused  to  certify  the  result  of  an  election  for  Rep- 
resentatives in  the  Congress  of  the  United  States,  it  was  held 
that  other  proof  of  such  election  was  admissible,  and  that 
the  House  being  satisfied  from  such  proof  that  claimant  was 
elected,  he  should  be  admitted.' 

§  206.  In  the  absence  of  any  statutory  provision  expressly 
requiring  more,  a  plurality  of  the  votes  cast  will  elect.    It 

election  to  immediately,  after  the  ballots  were  counted,  transmit  them 
by  the  constable  in  attendance  at  the  election  to  the  city  clerk.  In 
Abbot  V.  Frost,  Smith,  594,  the  ballots  were  placed  in  the  hands  of  a 
police  officer  and  were  by  him  turned  over  to  a  night  watchman,  who 
held  them  untU  the  morning  after  the  election,  when  they  were  again 
returned  to  the  police  officer,  and  were  by  him  delivered  to  the  city 
clerk.  No  effort  was  made  to  show  that  the  ballots  were  not  tampered 
with  while  thus  in  the  possession  of  authorized  persons.  Held,  that  the 
vote  must  be  excluded.] 

1  Bennett  v.  Chapman,  1  Bart.,  204.    See,  also,  Clark  v.  Hall,  Id.,  215. 

2  Richard's  Case,  CL  &  H.,  95,  97,  166. 
»  Clement's  Case,  1  Bart.,  366. 


CHAP.  Vn.]  KEGULATI0N8.  153 

is  only  in  cases  where  the  statute  so  provides  that  a  majority 
of  all  the  votes  cast  is  necessary  to  the  choice  of  an  officer. 
In  this  country,  where  candidates  may  be  numerous,  and  the 
votes  of  the  electors  divided  among  a  number  of  different 
persons,  to  require  a  majority  to  elect  would  be  to  prevent 
a  choice  in  very  many  cases ;  hence  it  is  that  a  majority  is 
seldom  required  in  a  popular  election.^  In  those  States 
where  a  majority  is  required  to  elect  (and  such  is  the  re- 
quirement in  Vermont  and  perhaps  in  a  few  other  States), 
provision  is  made  by  statute  for  a  second  election  in  case 
there  is  no  choice  at  the  first. 

§  207.  Under  Article  1,  Section  2,  Constitution  of  the 
United  States,  which  requires  each  State  to  appoint  Presi- 
dential electors  at  proper  times  in  such  manner  as  the  Leg- 
islature thereof  may  direct,  the  State  Legislature  may  law- 
fully enact  that  a  plurality  of  the  electors  voting  shall  be 
sufficient  to  elect  a  Presidential  elector.'^ 

§  208.  "Where  a  statute  requires  a  question  to  be  decided 
or  an  officer  to  be  chosen  by  the  votes  of  "  a  majority  of  the 
voters  of  a  county,"  this  does  not  require  that  a  majority  of 
all  persons  in  the  county  entitled  to  vote  shall  actually  vote 
affirmatively,  but  only  that  the  result  shall  be  decided  by 

1  Augustin  V.  Eggleston,  12  La.  Ann.,  366;  Cooley's  Const.  Lim.,  619, 
630. 

2  In  re  Plurality  Elections  (R  L),  8  Atl.  Rep.,  881;  15  R  L,  617.  [In 
Rhode  Island  the  Constitution  provided  that  in  all  elections  held  by  the 
people  under  this  Constitution,  "  a  majority  of  all  the  electors  voting 
shall  be  necessary  to  the  election  of  the  person  voted  for."  In  Re  Plu- 
rality Elections,  supra,  the  query  was,  could  the  election  of  a  Represent- 
ative to  Congress  be  called  one  "  under  this  Constitution "  so  as  to 
necessitate  a  majority  election  to  such  oflftce?  The  court  held  that  it 
could  not,  or,  if  it  could,  then  the  provision  was  void  as  being  in  conflict 
with  Section  4,  Article  1,  of  the  Constitution  of  the  United  States;  for 
it  "  would  assume  to  impose  a  restraint  upon  the  power  of  prescribing 
the  manner  of  holding  elections  which  is  given  to  the  Legislature  by 
the  Constitution  of  the  United  States  without  restraint,  so  long  as  and 
to  the  extent  that  Congress  refrains  from  making  regulations  in  the 
same  matter."  The  Constitution  of  Rhode  Island  was  changed  in  1895 
and  a  plurality  is  now  suflScient  to  elect  in  that  State.] 


154  ELECTIONS.  [chap.  vn. 

the  majority  of  the  votes  cast,  provided  always  that  there 
is  a  fair  election  and  an  equal  opportunity  for  all  to  partici- 
pate. In  such  a  case  the  only  proper  test  of  the  number  of 
persons  entitled  to  vote  is  the  result  of  the  election  as  deter- 
mined by  the  ballot-box,  and  the  courts  will  not  go  outside 
of  that  to  inquire  whether  there  were  other  persons  entitled 
to  vote  who  did  not  do  so.  The  "  voters  of  the  county  "  re- 
ferred to  by  all  such  statutes  are  necessarily  the  voters  who 
vote  at  the  election,  since  the  result  in  each  case  must  be  de- 
termined by  a  count  of  the  ballots  cast  and  not  by  an  inquiry 
as  to  the  number  not  cast.  This  doctrine  is  well  settled  by 
the  authorities.^ 

§  209.  When  the  Constitution  refers  a  question  to  popu- 
lar vote  to  be  determined  by  "  a  majority  of  the  legal  voters 
of  the  county  voting  at  a  general  election,"  the  requirement 
calls  for  the  majority  of  those  who  vote  on  any  ticket,  nom- 
ination or  question  at  that  election,  not  merely  a  majority 
of  those  who  vote  on  the  particular  question  presented. 
Where  a  question  of  township  organization  was  submitted 
at  an  election  at  which  about  two  thousand  five  hundred 
votes  were  cast  for  officers,  but  many  did  not  vote  at  all  on 
the  township  question,  so  that  the  vote  on  that  stood  nine 
hundred  in  favor  to  six  hundred  against.  Held^  that  the 
requisite  majority  was  not  obtained.' 

1  People  V.  Warfield,  20  111.,  163;  People  v.  Garner,  47  III,  246;  People 
v.  Wiant,  48  111.,  263;  Railroad  Co.  v.  Davidson  Co.,  1  Sneed,  692;  Angell 
&  Ames  on  Corp.  (9th  ed.),  sees.  499,  500;  Bridgeport  v.  Railroad,  15 
Conn.,  475;  Talbot  v.  Dent,  9  B.  Mon.,  526;  State  v.  Mayor,  37  Mo.,  270- 
272;  St.  Joseph  Township  v.  Rogers,  16  Wall.,  644  And  see  County  v. 
Johnson,  5  Otto,  369,  where  it  is  held  that  all  qualified  voters  wha 
absent  themselves  from  an  election  duly  called  are  presumed  to  assent 
to  the  expressed  will  of  the  majority  of  those  voting,  unless  the  law 
providing  for  the  election  otherwise  declares.  See,  also,  to  the  same 
effect,  Everett  v.  Smith,  22  Minn.,  53;  [Tester  v.  City  of  Seattle,  1  Wash. 
St.,  308;  Richardson  v.  McReynolds,  114  Ma,  641;  State  v.  Barnes,  3  N. 
Dak.,  319]. 

2  State  V.  Commissioners,  6  Neb.,  474;  [State  v.  Bechel,  23  Neb.,  158; 
State  V.  Babcock,  17  Neb.,  188;  People  v.  Wiatt,  48  111.,  263:  State  v. 
Winkelmeir,  35  Mo.,  103.    But  see  Walker  v.  Oswald,  68  Md.,  146;  Sam» 


OHAP.  Vn.]  KEGULATIONS.  165 

§  210.  Where  the  Constitution  prohibited  counties  and 
cities  from  incurring  certain  debts  except  upon  "  a  vote  of 
the  majority  of  the  qualified  voters  therein,"  it  was  held  by 
the  Supreme  Court  of  I^orth  Carolina  that  the  term  "  quali- 
fied voters  "  refers  to  the  class  of  persons  whose  competency 
to  vote  has  been  passed  upon  in  their  admission  to  registra- 
tion, and  that  such  persons  as  have  been  lawfully  registered 
constitute  the  qualified  voters  of  a  given  county.  In  such  a 
case,  as  was  further  held,  a  mere  majority  of  the  votes  actu- 
ally cast  is  not  sufficient.^ 

Case  with  note,  27  Am.  Law  Reg.,  509,  where  it  is  held  that  the  adoi>- 
tion  of  a  high-license  law  did  not  depend  upon  a  majority  of  all  the 
votes  cast  at  that  election  upon  some  other  subject,  but  upon  its  receiv- 
ing a  majority  of  the  votes  cast  specifically  for  or  against  it.  The  pro- 
visions of  the  enabling  act  of  February  22,  1889,  under  which  the 
Dakotas,  Montana  and  Washington  became  States,  authorized  the  adop- 
tion of  Constitutions  by  said  States  if  such  Constitutions  received  "  a 
majority  of  the  votes  cast."  It  was  held  in  State  v.  Barnes,  3  N.  D.,  319, 
that  where  a  vote  was  taken  upon  the  adoption  of  a  Constitution  at  an 
election  where  a  Governor  was  also  to  be  elected,  that  the  Constitution 
was  adopted  if  it  received  a  majority  of  the  votes  cast  on  the  question 
of  its  adoption,  and  that  it  was  not  necessary  that  it  should  receive  a 
majority  of  the  votes  cast  for  Governor]. 

1  McDowell  V.  Rutherford  Const.  Co.,  96  N.  C,  514;  2  S,  E.  Rep.,  351; 
[State  V.  Francis,  95  Mo.,  44;  Mayor  of  the  City  of  Madison  v.  "Wade,  88  Ga., 
699;  Chester  R.  R.  Co.  v.  Caldwell  Co.,  72  N.  C,  486;  Hawkins  v.  Carroll 
Co.,  50  Miss.,  736;  State  v.  Sutterfield,  54  Mo.,  391;  State  v.  Bassfield,  67 
Mo.,  331;  People  v.  Brown,  11  111.,  478.  By  an  act  of  the  Legislature  of 
South  Carolina,  incorporating  the  town  of  Florence,  it  was  provided  that 
the  town  might  issue  bonds  for  internal  improvements  upon  a  vote  of 
the  people  approving  it.  All  persons  owning  $100  worth  of  taxable  prop- 
erty in  the  town  could  vote  and  were  entitled  to  one  vote  for  each  $100. 
The  court  held  that  unless  a  majority  of  the  taxable  property  was  voted 
the  election  was  void.  Wilson  v.  Town  Council  of  Florence,  39  S.  C, 
397;  and  Id.,  40  S.  C,  290.  Where  the  Constitution  provides  that  certain 
classes  of  municipal  bonds  shall  not  be  issued  unless  a  majority  of  the 
"  qualified  voters  of  the  town  "  shall  vote  therefor,  held,  that  a  statute 
providing  for  the  issue  of  such  bonds  if  a  majority  of  the  persons  voting 
shall  vote  for  such  issue  was  unconstitutional.  Duke  v.  Brown,  96 
N.  C,  127.  As  to  the  meaning  of  the  phrases  "  qualified  voters,"  "  major, 
ity  of  the  voters  of  the  town,"  and  other  similar  phrases,  see  note  to 
case  of  McDowell  v.  Rutherford  Const.  Co.,  17  Am.  &  Eng.  Corp.  Cases, 
412]. 


156  ELECTIONS.  [chap.  VII. 

§  211.  The  case  of  Reed  v.  Corden'^  presented  the  im- 
portant question  whether  a  State  has  the  constitutional 
power  to  provide  that,  in  case  of  a  tie  between  two  candi- 
dates for  Eepresentative  in  Congress,  the  question  which  of 
the  two  shall  be  the  Representative  may  be  determined  by 
lot.  It  was  held  that  the  statute  of  Maryland  authorizing  the 
Governor  and  Council,  in  such  a  case,  to  proceed  to  decide  by 
lot  which  of  the  two  shall  receive  the  certificate  and  be  en- 
titled to  the  seat  was  unwarranted  by  the  Constitution,  and 
that  the  record  of  such  a  decision  was  not  admissible  in  evi- 
dence.^   This  decision  was  put  upon  two  grounds: 

1.  That  the  House  of  Representatives  is  composed  of 
members  chosen  every  second  year  by  the  people  of  the 
United  States,  and  that  the  law  of  Maryland  in  effect  gave 
the  choice  to  the  Governor  and  Council  of  that  State,  in  case 
of  a  tie;  and 

2.  That  the  House  being  by  the  Constitution  "  the  judge 
of  the  election,  returns  and  qualifications  of  its  own  mem- 

1 CL  &  a,  35a 

2  [It  has  been  held  by  the  Supreme  Coiirt  of  Indiana  that  a  statute 
of  that  State  (Sec.  4736,  R.  S.  1881)  which  provides  that,  where  an  elec- 
tion results  in  a  tie  vote  for  opposing  candidates,  thejudges  of  elec- 
tion shall  determine  by  lot  the  person  entitled  to  the  office,  is  not 
in  conflict  with  the  constitutional  provision  that  all  elections  shall 
be  by  ballot,  and  is  valid  (Johnson  v.  State,  128  Ind.,  16);  and  that 
election  boards  may  be  compelled  by  mandate  to  re-assemble  and  de- 
termine by  lot  which  of  the  candidates  for  a  township  office  who  have 
received  an  equal  number  of  votes  shall  be  entitled  to  the  office.  Kim- 
merer  V.  State,  129  Ind.,  589.  After  several  inaffectual  attempts  to  elect 
a  temporary  chairman  of  a  nominating  convention,  a  like  number  of 
votes  being  cast  for  the  opposing  candidates,  the  vote  of  one  of  the 
delegates  was  challenged  on  the  ground  that  the  vote  in  the  caucus  at 
which  he  claimed  to  have  been  elected  was  a  tie,  and  that  thereupon 
the  matter  was  determined  by  the  contesting  delegates  as  follows:  A 
bystander  drew  from  his  pocket  a  handful  of  coins,  the  candidates 
made  their  choice  of  "odd  "  or  "  even,"  and  a  counting  of  the  coins  re- 
sulted in  favor  of  the  sitting  delegate.  The  chair  thereupon  appointed 
a  committee  on  credentials,  which  reported  that  the  sitting  delegate 
was  not  entitled  to  a  seat  in  the  convention.  Held,  that  the  appoint- 
ment of  such  committee  was  proper  and  their  determination  sustained 
by  authority.     Beck  v.  Board  of  Election  Commissioners,  103  Mich.,  192w] 


CHAP,  VII.]  EEGULATIONS.  167 

bers,"  it  can  never  sanction  the  doctrine  that  any  State  can 
confer  upon  any  officer  or  tribunal  power  to  decide  a  ques- 
tion of  this  kind.  The  committee  seemed  to  be  of  opinion 
that  in  case  of  a  tie  there  is  no  election  by  the  people, 
and  no  certificate  of  election  should  be  given  by  the  State 
authorities  to  any  one.  It  was  held  that  the  Representative 
must  be  chosen  by  the  people ;  and  that  if  an  equal  number 
of  votes  are  given  to  each  candidate  there  is  no  choice,  and 
the  only  remedy  is  in  a  new  election. 

§  212.  The  State  of  Illinois  has  provided  by  a  provision  of 
its  Constitution  for  minority  representation  in  the  State 
Legislature.  This  is  accomplished  by  what  is  known  as  cu- 
mulative voting,  the  provision  being  as  follows : 

"  In  all  elections  of  Representatives  aforesaid,  each  quali- 
fied voter  may  cast  as  many  votes  for  one  candidate  as  there 
are  Representatives  to  be  elected,  or  may  distribute  the  same, 
or  equal  parts  thereof,  among  the  candidates,  as  he  shall  see  fit ; 
and  the  candidates  highest  in  votes  shall  be  declared  elected."  ^ 

In  !N"ew  York  and  Ohio  an  attempt  has  been  made  to  pro- 
vide for  minority  representation  by  statute,  in  the  absence 
of  express  constitutional  authority;  but  in  the  former  State 
the  constitutionality  of  the  act  has  been  seriously  questioned, 
and  in  the  latter  altogether  denied.^  In  the  Ohio  case  the 
rule  is  laid  down  that,  where  an  office  is  to  be  filled  by  an 
election,  the  election  must  conform  to  the  requirements  of 
the  Constitution,  one  of  which  is  declared  to  be  that  each 
elector  of  the  district  is  entitled  to  vote  for  a  candidate  for 
each  office  to  be  filled  at  the  election.  It  was  accordingly 
held  that  a  statute  of  that  State  providing  for  the  election 
of  four  members  of  a  police  board  at  the*same  election,  but 
which  denied  to  an  elector  the  right  to  vote  for  more  than 
two  members  of  such  board,  was  in  conflict  with  the  Consti- 
tution of  Ohio  and  void. 

A  somewhat  different  question  is  presented  by  a  statute 
which  permits  without  requiring  a  voter  to  concentrate  more 

1  Constitution  of  Illinois,  1870,  Art.  4,  Sees.  7,  8. 

2  People  V.  Kenney,  96  N.  Y.,  294;  People  v.  Cissey,  91  Id.,  616;  State 
V.  Constantine,  42  Ohio  St.,  437. 


158  ELECTIONS.  [chap,  VH. 

than  one  vote  upon  a  less  number  of  candidates  than  the 
whole  number  to  be  chosen ;  but  it  is  believed  that  the  same 
principle  is  involved ;  for  in  either  case  the  result  is  to  per- 
mit the  minority  of  the  voters  to  choose  part  of  the  officers 
to  be  elected.  If  this  be  unconstitutional  in  the  one  form  it 
is  likewise  so  in  the  other.  It  would  seem,  therefore,  that 
minority  representation  and  cumulative  voting  can  be  pro- 
vided for  only  by  constitutional  provision.^ 

'See  note  to  case  of  State  v.  Constantine,  9  Am.  &  Eng.  Corp.  Ca&,  39 
to  42.    See,  also,  People  u  Perly,  80  N.  Y.,  624. 

[General  Note  on  Subject  op  Minority  Representation. — It  is  a 
very  just  criticism  of  the  present  system  of  elections  that  it  does  not 
afford  to  the  minority  a  right  to  participate  in  the  administration  of  the 
public  affairs,  nor  a  voice  in  declaring  the  policy  to  be  adopted  as  rep- 
resentative of  the  community  in  which  the  election  is  held. 

This  obvious  defect  in  the  elective  or  popular  scheme  of  government 
has  not  yet  been  corrected.  Numerous  attempts  have  been  made  to 
secure  to  minorities  their  just  and  proportionate  representation,  and 
various  schemes  have  been  devised  whereby  this  result  could  be  ac- 
complished. 

These  schemes  for  voting  have  been  enumerated  as  follows: 

1st.  The  limited  vote,  i.  e.,  the  vote  for  a  less  number  than  there 
are  places,  as  for  two  when  three  persons  are  to  be  chosen-  This 
method  was  introduced  into  the  bUl  of  1867  for  reforming  representa- 
tion in  England. 

2d.  The  cumulative  vote,  where  the  voter  is  allowed  to  cast  as 
many  votes  as  there  are  persons  to  be  elected,  and  to  distribute  them 
among  the  various  candidates  as  he  may  desire.  This  plan  is  especially 
applicable  where  the  practice  of  voting  by  general  tickets  prevails. 

3d.  The  election  by  lists,  a  plan  originated  by  Mr.  Gilpin,  and  said 
to  work  satisfactorily  in  Switzerland.  By  this  plan  each  party  puts 
in  nomination  a  complete  ticket,  and  each  voter  has  the  right  to  cast 
one  ballot  Upon  ascertaining  the  total  number  of  ballots  cast,  that 
sum  is  divided  by  the  number  of  places  to  be  filled,  and  each  ticket 
secures  places  for  its  candidates  in  proportion  to  the  number  of  votes 
cast  by  it,  taking  the  persons  elected  from  the  head  of  the  tickets. 
This  scheme  is  said  to  be  the  most  practical  of  any  yet  devised. 

4tli-  Preferential  voting,  a  plan  devised  by  Mr.  Thomas  Hare,  and 
advocated  by  him  in  a  book  upon  the  subject  published  in  1859.  This 
plan  is  too  complicated  and  intricate  to  be  useful  in  popular  elections, 
and  its  theory  ueed  not  be  explained  here. 

5th.  Substitute  voting.  By  this  method  the  number  of  votes  nec- 
essary to  constitute  what  is  known  as  the  "  electoral  quota  "  is  first 


CHAP.  VII.]  EEGULATIONS.  159 

§  213.  A  statute  of  New  York  provided  that  it  should 
not  be  lawful  for  any  person  "  to  contribute  money  for  any 
purpose  intended  to  promote  the  election  of  any  particular 

ascertained.  This  electoral  quota  is  arrived  at  by  dividing  the  num- 
ber of  votes  polled  by  the  number  of  persons  to  be  elected.  This  being 
known,  candidates  may  cast  surplus  votes,  or  those  over  the  electoral 
quota,  and  insufficient  votes,  or  those  under,  and  may  thus  fill  up  the 
places  which  have  not  been  filled  by  the  voting  of  the  electors. 

6th.  Proxy  voting,  by  which  a  representative  may  cast  as  many 
votes  as  he  receives  multiples  of  the  electoral  quota.  Lieber's  Civil 
Liberty,  p.  177,  note. 

In  several  States  efforts  have  been  made  to  put  some  of  the  plans  in 
operation,  principally  to  secure  minority  representation  in  State  Leg- 
islatures, but  with  very  little  success.  This  failure  has  been  due  partly 
to  inherent  deficiencies  and  objections,  which  are  found  in  every  one 
of  the  schemes  outlined,  and  partly  to  the  irregularity  and  impropriety 
of  the  proceedings  taken  to  incorporate  the  systems  into  the  State 
election  laws  where  their  introduction  would  be  repugnant  to  the  exist- 
ing Constitution. 

As  instances  of  such  failures  due  to  this  second  reason,  three  cases 
may  be  cited.  In  Ohio  an  act  was  passed  authorizing  and  providing 
for  elections  under  the  restrictive  plan.  That  law  was  declared  by  the 
Supreme  Court  to  be  unconstitutional,  it  being  held  that  every  elector 
had  the  right  to  vote  for  every  candidate  or  person  to  fill  the  offices 
provided  by  law  to  be  elected  by  the  vote  of  the  elector,  and  a  law 
which  denied  an  elector  the  right  to  vote  for  more  than  two  out  of 
four  persons  to  be  elected  took  away  from  him  a  substantial  right 
guaranteed  by  the  Constitution.    State  v.  Constantine,  42  Ohio  St.,  437. 

A  second  instance  is  found  in  the  case  of  Maynard  v.  Board  of 
District  Canvassers,  84  Mich.,  228.  This  case  arose  under  an  act  of  the 
Legislature  of  Michigan  providing  for  the  election  of  members  of 
that  body  by  the  "  cumulative  "  method  of  voting.  The  act  was  de- 
clared unconstitutional  by  the  Supreme  Court  of  the  State,  which 
ruled  that,  when  the  Constitution  declared  that  a  person  possessing  the 
prescribed  qualifications  of  an  elector  should  be  entitled  to  vote  at  all 
elections,  it  prohibited  by  implication  any  elector  from  casting  more 
than  one  vote  for  any  candidate  for  office,  as  such  had  been  the  practi- 
cal construction  of  the  Constitution  ever  since  its  adoption. 

Again,  in  1891  the  Legislature  of  New  Jersey  passed  an  act  providing 
for  the  election  of  members  of  the  assembly  in  assembly  districts,  allow- 
ing each  voter  to  vote  for  but  one  member  instead  of  voting  for  all. 
This  was  also  held  unconstitutional    State  v.  Wrightson,  56  N.  J.  L.,  126. 

In  Pennsylvania,  however,  the  courts  seem  to  have  adopted  a  differ- 
ent rule  of  construction.  The  late  case  of  Commonwealth  u  Reeder,  33 
L.  R.  A.,  141  (Pa.),  is  one  upholding  such  a  restriction  placed  upon  the 


160  ELECTIOXS.  [chap.  VH. 

person  or  ticket^  except  for  defraying  the  expenses  of  print- 
ing, and  the  circulation  of  votes,  hand-bills  and  other  papers, 
previous  to  any  such  election."    Under  this  statute  it  was 

voter.  The  law  there  in  question  provided  that  one  might  vote  for  six 
out  of  seven  oflBcers  to  be  elected,  and  this  was  held  to  be  no  violation 
of  the  constitutional  rights  of  the  elector  in  that  State.  The  views  ex- 
pressed in  this  decision,  however,  were  not  concurred  in  by  the  full 
court,  and  a  strong  dissenting  opinion  was  written  by  Williams,  J., 
which  was  approved  by  Chief  Justice  Sterrett. 

In  Illinois  a  provision  in  an  act  for  the  election  of  trustees  of  a  sani- 
tary district,  that  the  voter  may  vote  for  as  many  candidates  as  there 
are  trustees  to  be  elected,  or  may  cumulate  his  vote  on  a  smaller  number, 
is  held  not  in  conflict  with  the  Constitution  of  that  State  (Art  7,  Sec.  1), 
which  provides  that  "  every  male  citizen  of  the  United  States,  over 
twenty-one  years  of  age  and  possessing  certain  qualifications,  shall  be 
entitled  to  vote  at  all  elections,"  as  it  does  not  make  cumulative  vot- 
ing compulsory  and  leaves  voters  free  to  vote  for  the  whole  number 
of  candidates  to  be  elected  if  they  desire  to  do  sa  People  v.  Nelson, 
133  IlL,  565. 

Turning  now  to  an  inspection  of  the  schemes  with  regard  solely  to 
their  intrinsic  merits  or  defects,  we  find  that  they  are  open  to  objec- 
tion. Most  of  them  are  too  tedious  and  complex  to  be  generally  prac- 
ticable. 

Space  will  not  permit  of  an  extended  discussion  here  of  the  several 
plans,  but  as  the  scheme  of  voting  on  the  "  cumulative  "  plan  seems 
to  have  attracted  the  most  interest,  and  has  been  experimented  with 
more  than  any  other,  let  us  observe  one  result  of  its  operation,  which, 
when  it  occurs,  demonstrates  a  fatal  weakness  in  its  theory. 

This  method,  of  course,  cannot  be  of  service  when  there  is  only  one 
representative  from  a  district  to  be  elected.  It  reaches  its  greatest 
efficiency  when  there  is  a  large  number  of  candidates  and  offices  and 
numerous  divisions  of  public  sentiment. 

But  take  the  case  where  an  electoral  district  sends  two  representa- 
tives to  the  Legislature,  and  let  us  suppose  that  the  election  be  made 
through  cumulative  voting.  Each  of  the  two  parties  nominates  two 
candidates,  and  the  party  in  the  minority,  by  casting  all  of  their  votes 
for  one  of  their  candidates,  secures  his  election.  This  the  majority 
cannot  prevent,  and  it  is  thus  found  that  the  majority  and  the  mi- 
nority are  on  a  par,  as  far  as  representation  is  concerned,  each  having 
elected  a  representative. 

It  is  the  very  essence  of  a  republican  form  of  government  that  the 
majority  should  rule,  and  this  policy  pervades  every  election  held  under 
such  a  form  of  government.  In  the  case  above  put  this  policy  is  en- 
tirely thwarted.  In  Illinois,  where  this  system  is  in  use  for  the  elec- 
tion of  representatives  to  the  State  Legislature,  the  foregoing  criticism 


CHAP.  VII.]  KEGULATIONS.  161 

held  in  Jackson  v.  Walker  ^  that  a  contract  to  pay  the  plaint- 
iff $1,000  for  erecting  and  keeping  open  a  building  known 
as  a  log  cabin  for  the  use  of  the  Whig  party  during  the 
campaign  of  1840,  and  for  the  use  and  benefit  of  the  candi- 
dates of  that  party,  was  void.  The  court  held  that  it  was 
not  necessary  to  show  fraud,  as  the  statute  clearly  forbade 
the  contract,  by  declaring  that  with  two  specified  exceptions 
money  intended  to  promote  an  election  shall  not  be  con- 
tributed. 

§  214.  In  Hurley  v.  Van  Wagner^  however,  it  was  held, 
under  same  statute,  that  an  action  will  lie  to  recover  compen- 
sation for  services  rendered  to  another,  under  a  contract,  in 
putting  up  and  taking  down  a  tent  used  by  the  employer  as 
a  place  for  holding  public  meetings  of  the  friends  of  a  par- 
ticular candidate  for  the  Presidency  during  a  canvass  preced- 
ing a  Presidential  election.  And  in  this  latter  case  the  Court 
expressed  the  opinion  that  the  ruling  in  Jackson  v.  Walker 
went  too  far,  and  could  not  be  reconciled  with  the  spirit  or 
the  letter  of  the  statute  of  which  it  is  an  exposition.     The 

does  not  apply,  as  each  district  elects  three  representatives.  Its  opera- 
tion in  that  State  seems  to  be  attended  with  the  most  beneficial  re- 
sults. 

The  cumulative  method  is  of  considerable  value,  also,  for  use  in  the 
voting  of  stock  in  corporations. 

By  legislative  enactment  in  the  States  of  Nebraska,  West  Virginia, 
Missouri  and  California,  cumulative  voting  for  such  purpose  has  been 
expressly  permitted. 

These  questions  are  ably  and  exhaustively  discussed  in  Maynard  v. 
Board  of  District  Canvassers,  supra. 

As  regards  cumulative  voting  in  corporations,  it  has  been  held  that 
constitutional  provisions  providing  for  this  method  in  corporations  ex- 
isting at  the  time  the  Constitution  was  adopted  are  void  as  to  these 
corporations.  These  decisions  were  made  on  the  theory  that  such  pro- 
visions impaired  the  obligation  of  the  contract  between  the  State  and 
the  corporation,  represented  by  the  latter's  charter.  Hayes  v.  Com- 
monwealth of  Pennsylvania,  82  Pa.  St.,  518;  State  v.  Green,  78  Mo., 
ISa    See,  also.  Am.  &  Eng.  Cyc  of  Law,  vol.  4,  p.  954] 

15  Hill,  27. 
238  Barb.,  109. 
11 


162  ELECTIONS.  [chap.  VII. 

true  rule,  independent  of  any  statute,  doubtless  is,  that  all 
contracts  entered  into  for  the  purpose  of  improperly  or  cor- 
ruptly influencing  the  voters  at  an  election  are  void,  because 
against  public  policy  and  contrary  to  sound  morality. 

§  215.  All  votes  obtained  by  paying  or  agreeing  to  pay 
money,  or  property,  or  anything  of  value,  to  electors  there- 
for, are  to  be  rejected  upon  proper  proof  by  the  court  or 
tribunal  trying  a  case  of  contest.^ 

This  rule  rest  upon  principles  of  great  public  importance, 
which  are  thus  stated  by  the  Supreme  Court  of  Wisconsin 
in  State  v.  Olin:^ 

"  In  our  form  of  government,  where  the  administration  of 
public  affairs  is  regulated  by  the  will  of  the  people,  or  a 
majority  of  them,  expressed  through  the  ballot-box,  the  free 
exercise  of  the  elective  franchise  by  the  qualified  voters  is  a 
matter  of  the  higest  importance.  The  safety  and  perpetu- 
ity of  our  institutions  depend  upon  this.  It  is  therefore 
particularly  important  that  every  voter  should  be  free  from 
any  pecuniary  influence.  For  this  reason  the  attempt  by 
bribery  to  influence  an  elector  in  giving  his  vote  or  ballot  is 
made  an  indictable  offense  by  statute.  *  *  *  The  pay- 
ment or  promise  ol  money  or  other  valuable  consideration 
for  the  giving  of  a  vote  no  doubt  constitutes  the  offense  of 
bribery  or  attempt  to  bribe  within  the  meaning  of  the  stat- 
ute. Can  a  vote  thus  obtained  in  direct  violation  of  the 
statute  be  considered  a  valid  or  legal  vote  ?  If  it  can,  then 
the  very  object  of  the  statute,  which  is  that  it  shall  not  be 
so  obtained,  is  defeated.  We  are  of  the  opinion  that  such 
votes  are  illegal,  and  that  the  judge  was  right  in  directing 
the  jury  to  disregard  them." 

§  216.  It  has  never  been  seriously  doubted  that  a  vote 
obtained  by  an  offer  to  the  voter  direct  of  a  pecuniary  or 
other  valuable  consideration  therefor,  is  a  bad  vote,  and 

I  State  V.  Olin,  23  Wis.,  327;  State  v.  Purdy,  88  Id.,  218;  [Cowan  v. 
Prowse,  93  Ky.,  156]. 
s  Supra, 


CHAP.  VII.]  EBGULATIONS.  168 

should  be  rejected.^  In  Dishon  v.  Smith'''  it  was  held  that 
the  offer  to  give  facilities  for  the  public  convenience  of  the 
whole  county  as  an  inducement  to  the  people  to  vote  for  the 
removal  of  the  county  seat  does  not  constitute  bribery,  and 
will  not  render  void  an  election  held  to  decide  the  question 
of  such  removal.  This  rule  was  re-affirmed  in  the  case  of 
Hawes  v.  Miller,^  where  it  appeared  that  certain  citizens 
had  executed  a  bond  obliging  themselves  to  remove  the 
county  jail  and  to  purchase  and  furnish  a  site  for  county 
buildings,  and  offering  other  inducements  to  the  public,  all 
upon  condition  that  the  county  seat  should  be  removed  by 
vote  of  the  people.  This  was  held  not  to  invalidate  the 
election.*    There  is,  however,  a  clear  distinction  between  an 

1  [In  Abbott  V.  Frost,  2  Bart.,  594,  the  question  arose  as  to  the  effect 
of  giving  employment  to  persons  in  the  United  States  navy  yard  at 
Boston  for  the  purpose  of  inducing  them  to  vote  for  the  sitting  mem- 
ber. It  was  held  that  the  votes  of  persons  so  employed,  and  accepting 
the  employment  with  knowledge  of  what  was  expected  of  them,  should 
not  be  counted.  The  committee  say:  The  rules  of  law  which  we  think 
should  govern  in  the  consideration  of  this  case  are  embodied  in  the  fol- 
lowing declarations:  1.  If  the  giving  of  employment  to  the  voters  im- 
mediately prior  to  the  election  was  for  the  purpose  of  inducing  them 
to  vote  for  the  contestee,  and  such  object  was  in  any  manner  made 
known  to  the  voter,  and  he  accepted  or  continued  in  such  employment 
after  obtaining  such  information,  he  thereby  became  a  party  to  the 
transaction,  accepted  its  terms,  and  the  onus  of  showing  that  he  did 
not  carry  it  out  in  good  faith  is  on  the  contestee.  2.  If  it  be  shown 
that  an  elector  enters  into  an  agreement  or  understanding,  direct  or 
indirect,  for  a  consideration  to  vote  a  specified  party  ticket  or  for  a 
particular  candidate,  it  is  fair  to  presume  that  he  casts  his  ballot  in 
accordance  with  such  agreement  or  understanding,  and,  unless  the  con- 
trary be  made  to  appear,  such  presumjition  becomes  conclusive.  Ballots 
thus  obtained  we  hold  to  be  illegal  and  ought  to  be  disregarded.  To 
count  them  in  the  general  canvass  is  to  place  them  on  the  same  footing 
with  the  votes  cast  by  the  honest,  free  and  independent  voter.  To  seat 
a  member  upon  majorities  obtained  through  such  influences  is  to  defeat 
the  very  object  for  which  the  statute  was  created.  See,  also,  Piatt  v. 
Good,  Smith,  650.] 

2 10  Iowa,  212. 

3  56  Iowa,  397. 

*  [Douglass  I'.  County  Commissioners,  23  Fla.,  419.  An  election  detef- 
mining  that  a  county  building  shall  be  huilt  is  not  invalidated  on  the 


164  ELECTIONS.  [chap.  XU^ 

election  held  for  the  purpose  of  locating  the  site  for  a  public 
building,  and  an  election  held  to  choose  a  public  oflBcer  to 
whom,  for  the  time  being,  is  to  be  confided  some  of  the 
functions  of  government.  This  distinction  is  recognized  by 
the  Supreme  Court  of  Iowa  in  Carrothers  v.  Russell^  where 
it  is  held  that  a  candidate  for  public  office,  who,  for  the  pur- 
pose of  influencing  voters,  pledges  himself,  if  elected,  to  pay 
into  the  treasury  all  the  fees  of  the  office  allowed  by  law  in 
excess  of  a  certain  sum  annually,  is  guilty  of  ofiPering  a  bribe, 
and  that  such  pledge  not  only  invalidates  the  votes  influenced 
thereby,  but  disqualifies  him  to  hold  the  office  if  otherwise 
legally  elected.  The  same  doctrine,  in  substance,  has  been 
laid  down  in  Wisconsin,^  in  Missouri,'  in  !N^ew  Hampshire,* 
in  Indiana '  and  in  Massachusetts.' 

§  217.  The  doctrine  of  the  cases  last  cited,  that  a  candi- 
date for  a  public  office  cannot  lawfully  attempt  to  influence 
votes  by  an  offer  of  public  benefits  and  advantages  to  be 
granted  in  the  event  of  his  election,  is  no  longer  open  to 
question.  Such  a  transaction  amounts  to  a  sale  of  the  office 
to  the  candidate  making  the  most  favorable  offer  to  the  pub- 
lic. Such  a  practice,  receiving  judicial  sanction,  would  un- 
doubtedl}'^  tend,  as  was  said  by  the  Supreme  Court  of  JS^ew 
Hampshire  in  Tucker  v.  Aikin,  "  to  divert  the  attention  of 
the  electors  from  the  qualifications  of  candidates  to  the  terms 
on  which  they  will  consent  to  serve,  and  make  the  choice 
turn  upon  considerations  which  ought  not  to  have  an  in- 
fluence." 

ground  of  corruption  because  workingmen  were  urged  to  vote  for  it 
on  the  ground  that  it  would  furnish  them  employment.  Bd.  of  Sup. 
"Wayne  Co.  v.  Judges  Wayne  Co.  Ct.  Court  (Mich.),  64  N.  W.  Rep.,  42.] 

153  Iowa,  346. 

2  State  V.  Purdy,  36  Wis.,  2ia 

3Stah9  V.  Collier,  15  Mo.,  393. 

<Tuckej  V.  Aikin,  7  N.  H.,  140. 

8  Hall  V.  Gavitt,  18  Ind.,  390. 

8Alvord  V.  Collins,  20  Pick.,  428.  And  see  note  to  State  v.  Collier, 
Am,  Law  Reg.  (N.  S.),  voL  18,  p.  768;  Neal  v.  Shinn,  49  Ark.,  227,  4 
S.  W.  Rep.,  771;  Wells  v.  Taylor,  3  Montana,  202;  &  C,  3  Pao.  Rep.,  255. 


CHAP.  VII.]  KEGULATIONS.  165 

§  218.  It  is  now  well  settled  that  a  wager  upon  the  re- 
sult of  an  election  is  wholly  void  as  being  contrary  to  public 
policy,  and  that  no  action  can  be  maintained  for  its  recovery.^ 
In  a  few  of  the  older  English  cases  actions  upon  wagers  were 
allowed  to  be  maintained.^  In  none  of  these  early  cases, 
however,  was  the  question  of  the  immoral  tendency  of  such 
transactions  raised  or  considered.'  The  more  recent  decis- 
ions in  Great  Britain  show  a  great  desire  and  tendency,  on 
the  part  of  the  judges,  to  get  rid  of  the  rule  thus  inadver- 
tently adopted  by  their  predecessors,  and  they  show  how 
much  the  more  enlightened  jurists  of  a  later  period  have 
been  trammeled  by  it.  They  have  endeavored  to  make  a  dis- 
tinction between  those  wagers  the  subject-matter  of  which 
is  perfectly  innocent,  and  those  in  which  it  is  not ;  and  they 
seek  to  apply  the  early  decisions  sustaining  the  validity  of  a 
wager  to  those  cases  where  the  subject-matter  is  of  the 
former  kind.  But  they  forget  that  it  is  the  wager  itself 
which  is  immoral,  and  can  never  be  innocent,  and  that,  there- 
fore, the  subject-matter  of  the  bet  can  make  no  difference 
in  its  moral  quality. 

§  219.  But  in  this  country  the  decisions  are  uniform,  and 
all  adverse  to  the  validity  of  any  bet  or  wager  of  any  kind  or 
character  whatever.*  In  Lansing  v.  Lansing^  cited  in  note  4, 
the  court  held  that  if  the  loser  had  given  his  negotiable  note 
for  the  amount  of  the  wager  the  invalidity  of  the  contract 
was  a  good  defense  against  the  indorsee  of  the  note.  But  in 
that  case  the  indorsee  of  the  note  took  it  with  notice,  and 
the  question  as  to  the  rights  of  an  innocent  purchaser  of  such 
paper  is  not  considered.  Where  the  amount  of  the  wager 
has  been  deposited  with  a  third  party  as  stakeholder,  an 

1  Loyal  V.  Myers,  1  Bailey,  486. 

2  Andrews  v.  Heme,  1  Lev.,  38;  Da  CJosta  v.  Jones,  Cowp.,  729;  Lord 
March  v.  Pegot,  5  Burr.,  2803. 

3 16  East,  158;  Id.,  162. 

*Bunn  V.  Riker,  4  Johns.,  426;  Lansing  v.  Lansing,  8  Id.,  454;  Visoher 
V.  Yates,  11  Id.,  23;  Smyth  v.  McMasters,  2  P.  A.  Browne,  182. 


166  ELECTIONS.  [chap.  YII. 

action  will  lie  against  him  by  the  loser  to  recover  back  the 
amount  of  the  deposit.^ 

In  Illinois  it  is  held  that,  if  a  negotiable  note  be  given  for 
an  illegal  wager,  the  illegality  of  the  consideration  is  no  de- 
fense to  a  suit  by  an  indorsee  for  value.^  And  there  seems 
to  be  no  reason  to  doubt  the  correctness  of  these  decisions. 

§  220.  The  principles  of  public  policy,  which  forbid  and 
make  void  all  contracts  tending  to  the  corruption  of  elec- 
tions held  under  authority  of  law,  apply  equally  to  what  are 
called  primary  or  nominating  elections,  or  conventions,  al- 
though these  are  mere  voluntary  proceedings  of  the  voters 
of  certain  political  parties.  It  is  quite  as  much  against  pub- 
lic policy  to  permit  contracts  to  be  made  for  the  purpose 
of  corrupting  a  convention  or  primary  election  as  to  permit 
the  same  thing  to  be  done  to  corrupt  voters  at  a  regular 
election.  The  buying  and  selling  of  votes  or  of  influence 
at  a  nominating  convention  or  election  is  quite  as  injurious 
to  the  public,  and  quite  as  abhorrent  to  the  law,  as  the  same 
corrupt  practices  when  employed  to  influence  an  election 
provided  for  by  statute.  The  too  common  practice  of  pro- 
viding liquors  to  be  used  to  influeuoe  voters  in  a  convention, 
primary  election,  or  regular  legal  election,  is  a  practice  which 
the  law  will  not  tolerate.  A  contract  made  for  such  a  pur- 
pose is  utterly  void.^ 

§  221.  In  Nichols  v.  Mudgett  *  the  following  were  the 
facts:  The  defendant  being  indebted  to  plaintiff,  who  was 

1  Visoher  v.  Yates,  supra.  See,  also,  Johnson  v.  Russell,  37  Cal.,  670; 
Reynolds  v.  McKinney,  4  Kan..  94;  Jennings  v.  Reynolds,  Id.,  101. 

2  Adams  v.  Woodbridge,  4  111.,  255;  Sherlty  v.  Howard,  3  Chic.  Leg. 
News,  280;  Gregory  v.  King,  Id.,  349. 

8  Strasberger  v.  Burk  (Md.,  1874),  13  Am.  Law  Reg.  (N.  S.),  607;  Nichols 
V.  Mudgett,  22  Vt.,  546;  Duke  v.  Asbee,  11  Ired.,  112.  And  upon  the  gen- 
eral question  of  the  invalidity  of  contracts  made  in  violation  of  the  estab- 
lished policy  of  the  law,  see  Spaulding  v.  Preston,  21  Vt.,  9.  In  Penn- 
sylvania it  is  held  that  an  act  of  the  General  Assembly  providing  for  the 
punishment  of  frauds  and  bribery  at  nominating  elections  and  conven- 
tions is  constitutional  and  valid.  Leonard  u  Commonwealth,  113  Pa. 
St.,  607,  16  Am.  &  Eng.  Corp.  Cas.,  136. 

*  Supra. 


OHAP.  Vn.]  KEGULATIONS.  167 

a  candidate  for  town  representative,  the  parties  agreed  that 
the  former  should  use  his  influence  for  the  plaintiff's  elec- 
tion, and  do  what  he  could  for  that  purpose,  and  that,  if  the 
plaintiff  was  elected,  that  should  be  a  satisfaction  of  his 
claim.  Nothing  was  specifically  said  about  the  defendant's 
voting  for  the  plaintiff,  but  he  did  vote  for  him,  and  would 
not  have  done  so,  nor  favored  his  election,  but  for  this  agree- 
ment. The  plaintiff  was  elected.  Held^  that  the  agreement 
was  void,  and  constituted  no  bar  to  a  recovery  upon  the  de- 
mand. And  in  Meaeham  v.  Dow  ^  it  was  held  that  a  note 
given  in  consideration  of  the  payee's  agreement  to  resign  a 
public  office  in  favor  of  the  maker,  and  to  use  his  influence 
in  favor  of  the  latter's  appointment  as  his  successor,  was 
void  in  the  hands  of  the  payee.  An  agreement  between  two 
voters  to  "  pair  off  "  and  both  abstain  from  voting  is  void, 
and  the  officers  of  the  election  cannot  refuse  to  receive  the 
vote  of  one  of  the  two  on  account  of  such  an  agreement. 

§  222.  In  a  contested  election  case,  very  little  attention 
should,  ordinarily,  be  paid  to  mere  irregularities  in  the  pro- 
ceedings of  the  election  officers  which  do  not  affect  the  real 
merits  of  the  case.^  Thus,  it  was  held  by  the  Court  of  Ap- 
peals of  New  York,  in  People  v.  Cooh^^  that  where  the  evi- 
dence goes  only  to  show  an  irregularity  without  fraudulent 
intent,  and  by  which  nobody  is  injured,  the  Court  is  not 
bound  even  to  submit  it  to  the  jury  as  an  open  question. 

132  Vt,  721. 

2  [Stockton  V.  Powell,  29  Fla.,  1;  State  v.  O'Daj,  69  Iowa,  368;  State  v. 
Nicholson,  102  N.  C,  465;  Behrensmeyer  v.  Kreitz,  135  111.,  591;  Acker- 
man  v.  Haenck,  147  III,  514;  Soper  v.  County  of  Sibley,  46  Minn.,  274 
San  Louis  Obispo  Co.  v.  White,  91  Cal.,  432;  Lehlbach  v.  Haynes,  54  N, 
J.  L.,  77;  Hannah  v.  Shepherd  (Tex.  Civ.  App.),  25  S.  W.  Rep.,  137 
Stemper  v.  Higgins,  38  Minn.,  222;  Dial  v.  HoUandsworth,  39  W.  Va..  1 
Sprague  v.  Norway,  31  Cal.,  173;  State  v.  Weed,  60  Conn.,  18;  Grelle  v. 
Pinney,  62  Conn.,  478;  Fowler  v.  State,  68  Tex.,  30;  Williams  v.  Shoudy, 
12  Wash.,  362;  Curtin  v.  Yocum.  1  Ells.,  416;  Sterrett  v.  McAdams  (Ky.), 
34  S.  W.  Rep.,  903;  Young  v.  Simpson  (Colo.),  42  Pac.  Rep.,  666;  Houston 
V.  Steele  (Ky.),  34  S.  W.  Rep.,  6;  Tebbe  v.  Smith,  108  CaL,  101;  People  v. 
Wood,  148  N.  Y.,  142.] 

3  8N.  Y.,  67. 


168  ELECTIONS.  [chap.  YU. 

The  question  in  that  case  was  whether  ballots  cast  for  Ben- 
jamin C.  "Welch,  Jr.  and  Benjamin  "Welch  should  be  counted 
for  Benjamin  Welch,  Jr.  Evidence  was  admitted  to  show 
the  voters'  intention,  and  it  was  such  as  to  leave  no  room  for 
doubt  that  all  these  ballots  were  intended  for  the  latter,  and 
the  court  below  instructed  the  jury  to  find  accordingly. 
This  rule  was  affirmed  in  the  Appellate  Court. 

§  223.  And  in  BorleauDs  Case,  tried  before  the  Court  of 
Common  Pleas  of  Philadelphia,  it  appeared  that  in  the  after- 
noon of  the  day  of  election  one  of  the  clerks  of  the  election 
became  so  much  intoxicated  as  to  be  unfit  for  his  duties,  and, 
at  the  request  of  the  inspectors,  one  Samuel  C.  Coxe  acted 
as  clerk  for  the  balance  of  the  day,  and  until  about  3  o'clock 
in  the  morniug  of  the  succeeding  day,  when  the  clerk,  hav- 
ing recovered  from  his  debauch,  appeared  and  signed  the 
returns.  Mr.  Coxe  was  not  sworn  and  was  a  candidate  for 
assessor  at  this  election.  Held,  that  these  facts  were  not 
such  as  should  induce  the  Court  to  set  the  election  aside, 
and  the  ground  of  the  decision  was,  that  the  evidence  did 
not  disclose  any  bad  faith  on  the  part  of  the  officers,  nor 
any  fraud.^ 

§  224.  In  the  same  case  it  further  appeared  that  one 
John  Haines,  a  candidate  for  judge,  was  occasionally  in  the 
room  where  the  election  was  held  during  its  progress  and 
after  the  polls  closed ;  that  he  opened  a  few  of  the  tickets, 
but,  being  admonished,  desisted.  Several  witnesses  testified 
to  his  handling  tickets  and  to  his  intermeddling,  and  it  is 
clear  that  his  conduct  was  improper  in  the  extreme.  But 
the  Court  say  that  "  it  has  not  been  pretended  that  this  elec- 
tion is  in  any  particular  tainted  with  actual  fraud ;  no  evi- 
dence has  been  adduced  either  showing  legal  votes  to  have 
been  rejected,  or  illegal  votes  received;  the  election  seems  to 
have  been  honestly  conducted,"  and  for  these  reasons  the 
court  declined  to  set  it  aside. 

§  225.  "While  it  is  well  settled  that  mere  irregularity  on 
the  part  of  election  officers,  or  their  omission  to  observe  some 

12  Pars.,  503;  Bright  Elec.  Cas.,  26a 


CHAP.  VII.]  EEGULATIONS.  169 

merely  directory  provisions  of  the  law,  will  not  vitiate  the 
poll,  there  has  been  some  confusion  and  conflict  as  to  what 
we  are  to  understand  by  irregularities,  and  as  to  what  pro- 
visions of  statute  are  to  be  regarded  as  directory  and  what 
mandatory.^  A  few  remarks  upon  this  subject  will  be  proper 
in  this  connection.  The  language  of  the  statute  to  be  con- 
strued must  be  consulted  and  followed.  If  the  statute  ex- 
pressly declares  any  particular  act  to  be  essential  to  the 
validity  of  the  election,  or  that  its  omission  shall  render  the 
election  void,  all  courts  whose  duty  it  is  to  enforce  such 
statute  must  so  hold,  whether  the  particular  act  in  question 
goes  to  the  merits,  or  affects  the  result  of  the  election,  or 
not.  Such  a  statute  is  imperative,  and  all  considerations 
touching  its  policy  or  impolicy  must  be  addressed  to  the 
Legislature.  But  if,  as  in  most  cases,  that  statute  simply  pro- 
vides that  certain  acts  or  things  shall  be  done  within  a  par- 
ticular time  or  in  a  particular  manner,  and  does  not  declare 
that  their  performance  is  essential  to  the  validity  of  the  elec- 
tion, then  they  will  be  regarded  as  mandatory  if  they  do, 
and  directory  if  they  do  not,  affect  the  actual  merits  of  the 
election.^ 

§  226.  Thus,  it  has  been  held  in  Missouri  that  a  statute 
making  it  the  duty  of  judges  of  election  to  cause  to  be 
placed  on  each  ballot  the  number  corresponding  with  the 
number  of  the  voter  offering  the  same,  and  providing  that 
no  ballot  not  numbered  shall  be  counted,  is  mandatory  and 
must  be  enforced.'  Although  this  doctrine  may  sometimes 
result  in  very  great  hardship  and  injustice  by  depriving  the 
voters  of  their  rights  by  reason  of  the  negligence  or  miscon- 
duct of  the  officers  of  election,  it  is  nevertheless  difficult  to 

1  [Votes  cast  by  qualified  voters  at  a  polling  place  outside  the  district 
in  which  they  should  have  voted  is  at  most  an  irregularity.  Peard  v. 
State,  34  Neb.,  372.] 

2  See  Barnes  v.  Supervisors,  51  Miss.,  305;  Wheelock's  Case,  82  Pa.  St., 
297;  [Allen  v.  Glynn,  17  Colo.,  338,  29  Pac.  Rep.,  670;  Parven  v.  Wineberg, 
130  Ind.,  561;  Bowers  v.  Smith,  111  Mo.,  45;  State  v.  Van  Camp,  36  Neb., 
91 ;  State  v.  Russell,  34  Neb.,  116.    Contra,  Doores  v.  Varnon,  94  Ky.,  507]. 

» Ledbetter  v.  Hall,  62  Ma,  422;  West  v.  Ross,  53  Mo.,  350. 


170  ELECTIONS.  [chap.  VH. 

see  how  any  different  construction  could  have  been  placed 
upon  such  a  statute.  Statutes  which  simply  direct  the 
judges  of  election  to  number  the  ballots,  without  declaring 
what  consequences  shall  follow  if  this  be  not  done,  may  well 
be  held  directory  only ;  ^  but  where  the  statute  both  gives  the 
directions  and  declares  what  the  consequences  of  neglecting 
their  observance  shall  be,  there  is  no  room  for  construction. 
Such  statutes  are  intended  to  prevent  fraudulent  voting;  and 
if  the  Legislature  is  of  the  opinion  that  the  general  good  to 
be  derived  from  their  strict  enforcement  will  more  than  coun- 
terbalance the  evils  resulting  from  the  occasional  throwing 
out  of  votes  honestly  cast,  the  courts  cannot  reconsider  the 
mere  question  of  policy.  The  legislative  will  upon  such  a 
subject,  when  clearly  expressed,  must  prevail.^ 

§  227.  The  rule  of  construction  to  be  gathered  from  all 
the  authorities  was  thus  stated  in  Jones  v.  Tl\£  State^  and 
approved  in  Gilleland  v.  Schuyler:  *  "  Unless  a  fair  consider- 
ation of  the  statute  shows  that  the  Legislature  intended  com- 
pliance with  the  provisions  in  relation  to  the  manner  to  be 
essential  to  the  validity  of  the  proceedings,  it  is  to  be  re- 
garded as  directory  merely." '  And  in  the  latter  case  the 
court  said :  "  Questions  affecting  the  purity  of  elections  are 
in  this  country  of  vital  importance.  Upon  them  hangs  the 
experiment  of  self-government.  The  problem  is  to  secure, 
first,  to  the  voter  a  free,  untrammeled  vote ;  and  secondly,  a 
correct  record  and  return  of  the  vote.     It  is  mainly  with 

1  [People  V.  Bidleman,  69  Hun,  596;  State  v.  Thayer,  31  Neb.,  82.] 

2  [Major  V.  Barker  (Ky.),  35  S.  W.  Rep.,  543;  Slaymaker  v.  Phillips 
(Wyo.),  42  Pac.  Rep.,  1049;  State  u  Connor,  86  Tex.,  133;  Russell  v.  Mc- 
Dowell, 83  Cal.,  70.  The  statutes  of  a  State  relating  to  the  manner 
of  stamping  a  ballot  are  mandatory  and  not  merely  directory.  Sego 
V.  Stoddard,  136  Ind.,  297.  The  presumption  of  the  law  is  that  election 
oflScers  have  discharged  their  duties,  and  if  the  statutes  require  them 
to  number  the  ballots  cast,  and  ballots  are  found  in  the  box  which  are 
not  numbered,  the  presumption  will  be  that  they  are  not  legally  cast. 
Kreitz  v.  Behrensmeyer,  125  IlL,  141.] 

8 1  Kan.,  273,  279. 

♦  9  Id.,  569. 

8[Blankenship  v.  Israel,  183  DL,  514;  Hodge  v.  linn,  100  HI.,  397.] 


OHAP.  VII.]  EEGULATI0N8.  171 

reference  to  these  two  results  that  the  rules  for  conducting 
elections  are  prescribed  by  the  legislative  power.  But  these 
rules  are  only  means.  The  end  is  the  freedom  and  purity  of 
the  election.  To  hold  these  rules  all  mandatory  and  essen- 
tial to  a  valid  election  is  to  subordinate  substance  to  form, 
the  end  to  the  means.  Yet,  on  the  other  hand,  to  permit  a 
total  neglect  of  all  the  requirements  of  the  statute,  and  still 
sustain  the  proceedings,  is  to  forego  the  lessons  of  experience 
and  invite  a  disregard  of  all  those  provisions  which  the  wis- 
dom of  years  have  found  conducive  to  the  purity  of  the 
ballot-box.^  Ignorance,  inadvertence,  mistake,  or  even  inten- 
tional wrong  on  the  part  of  local  officials,  should  not  be  per- 
mitted to  disfranchise  a  district.  Yet  rules  and  uniformity 
of  procedure  are  as  essential  to  procure  truth  and  exactness 
in  elections  as  in  anything  else.  Irregularities  invite  and 
conceal  fraud." 

If  we  keep  in  view  these  general  principles,  and  bear  in 
mind  that  irregularities  are  generally  to  be  disregarded, 
unless  the  statute  expressly  declares  that  they  shall  be  fatal 
to  the  election,  or  unless  they  are  such  in  themselves  as  to 
change  or  render  doubtful  the  result,  we  shall  find  no  great 
difficulty  in  determining  each  case  as  it  arises  under  the? 
various  statutes  of  the  several  States.^ 

1  [Provisions  of  registry  law  mandatory.  Appeal  of  Cusick,  136  Pa. 
St.,  459.] 

2  This  doctrine  is  illustrated  by  the  case  of  Fowler  v.  State,  68  Tex., 
30,  3  S.  W.  Rep.,  255.  It  is  here  held  that  a  failure  to  comply  with 
the  law  in  such  matters  as  the  following  will  not  necessarily  invalidate 
the  election: 

1.  No  tally-sheets  or  poll-lists  being  kept  or  returned. 

2.  Where  the  election  returns  contain  no  more  than  a  mere  state- 
ment of  the  result  of  the  voting. 

3.  Ballot-box  containing  the  tickets  being  sent  to  the  county  judge 
and  clerk  through  the  United  States  mail  instead  of  by  the  presiding 
manager  of  the  election. 

4.  The  returns  not  being  made  in  triplicate. 

5.  The  ballot-box  used  not  being  a  proper  one. 

Such  irregularities  as  these  will  not  vitiate  the  election  provided  that 
it  is  made  to  appear  that  the  neglect  or  misconduct  of  the  officers  has 


172  ELECTIONS.  [chap.  VIL 

§  228.  Those  provisions  of  a  statute  which  affect  the  time 
and  place  of  the  election,  and  the  legal  qualifications  of  the 
electors,  are  generally  of  the  substance  of  the  election, 
while  those  touching  the  recording  and  return  of  the 
legal  votes  received,  and  the  mode  and  manner  of  conduct- 
ing the  mere  details  of  the  election,  are  directory.^  The 
principle  is  that  irregularities  which  do  not  tend  to  affect 
results  are  not  to  defeat  the  will  of  the  majority ;  the  will  of 
the  majority  is  to  be  respected  even  when  irregularly  ex- 
pressed.2  The  officers  of  election  may  be  liable  to  punish- 
ment for  a  violation  of  the  directory  provisions  of  a  statute, 
yet  the  people  are  not  to  suffer  on  account  of  the  default  of 
their  agents.* 

§  229.  This  doctrine  was  again  recognized  and  enforced 
in  the  case  of  Arnold  v.  Lea^  a  case  which  affords  an  apt 

not  prevented  an  honest  and  fair  election.  For  an  example  of  a  man- 
datory statute  see  West  v.  Ross,  53  Mo.,  350.  See,  also,  Sees.  235,  228, 
282.  [The  removal  of  the  ballot-box  from  the  place  where  the  election 
was  held  before  the  vote  was  counted,  such  removal  being  in  violation 
of  a  statute,  will  be  sufficient  ground  for  rejecting  the  return.  Spencer 
u  Morey,  Smith,  437.] 

1  People  V.  Shermerhorn,  19  Barb.,  540.  [A  statute  prescribing  the  es- 
tablishment of  precincts  at  the  regular  meeting  of  the  county  commis- 
sioners held  immediately  preceding  the  election  is  directory  rather  than 
mandatory,  and  a  designation  of  precincts  by  the  commissioners  at 
another  time  will  not  invalidate  the  election.  Botkin  v.  McGinnis,  Mob., 
377.  The  failure  to  number  the  ballot  of  a  voter  at  an  election,  while 
an  irregularity,  is  not  of  such  a  character  as  to  deprive  the  voter  of  his 
vote.    O'Hair  v.  Wilson,  124  IlL,  351.] 

2  Juker  V.  Commonwealth,  20  Pa.  St.,  493;  Carpenter's  Case,  2  Pars., 
540;  Morris  v.  Van  Laningham,  11  Kan.,  269;  [State  v.  Norris,37  Neb., 
299;  Adsit  v.  Secretary  of  State,  84  Mich.,  420;  People  v.  Deverman,  83 
Hun,  181]. 

'  See  upon  this  general  subject  the  following  authorities:  Piatt  v. 
People,  29  IlL,  54;  Hardenburgh  v.  Farmers'  &  Merchants'  Bank,  2 
Green  (N.  Y.),  68;  Day  v.  Kent,  1  Oreg.,  123;  Taylor  u  Taylor,  20  Minn.. 
107;  People  v.  Bates,  11  Mich.,  362;  McKinney  v.  O'Connor,  26  Tex.,  5; 
Jones  V.  State,  1  Kan.,  273,  279;  Gorham  v.  Campbell,  2  Cal.,  135; 
Sprague  v.  Norway,  31  CaL,  173;  Keller  v.  Chapman,  34  Cal,  635; 
Bright.  Elec.  Caa,  448,  449,  450;  [Gilkey  v.  McKinley,  75  Wis.,  543,  44 
N.  W.  Rep.,  762]. 

<CL  &  H.,  601. 


CHAP,  vil]  regulations.  1T3 

illustration  of  the  rule.  In  this  case  it  appeared  that  at 
one  of  the  voting  places  the  inspectors  who  were  required 
by  law  "  to  take  charge  of  the  ballot-box,"  between  the  ad- 
journment on  the  first  and  the  opening  of  the  polls  on  the 
second  day  of  the  election,  delivered  it  to  the  sheriff,  and 
directed  him  to  lock  it  up  in  some  place  where  it  would  be 
safe.  The  sheriff  locked  the  box  up  in  a  trunk  and  left  the 
trunk  in  a  store-house  which  was  also  locked.  It  was  clear 
from  the  proof  that  the  box  was  not  tampered  with,  and  that 
no  person  had  been  injured  by  the  irregularity,  and  the 
House,  therefore,  refused  to  reject  the  vote. 

It  also  appeared  that,  at  one  of  the  precincts,  "  a  large 
gourd  was  made  use  of  by  the  inspectors  for  the  reception 
of  the  ballots,  and  upon  the  closing  of  the  polls  on  the  evening 
of  the  first  day  the  gourd  was  carefully  stopped  and  tied 
up  in  a  handkerchief,  and  delivered  to  one  of  the  inspectors 
for  safe  keeping;  that  the  same  was  taken  by  him  to  his 
home  and  locked  up  until  next  morning,  and  then  returned 
and  used  the  second  day."  There  was  no  evidence  of  fraud 
or  mismanagement  in  any  other  way.  This  was  in  clear 
violation  of  the  statute,  which  required  that  the  ballots  be 
"  placed  in  a  box,  which  shall  be  locked  or  otherwise  well 
secured."  It  also  appeared  that  some  of  the  officers  of  the 
election  were  not  sworn  as  the  law  required.  But  the  com- 
mittee were  of  the  opinion  that,  "notwithstanding  some 
irregularities  in  conducting  the  election  in  a  number  of  pre- 
cincts," it  was  "  managed  by  the  officers  appointed  to  hold 
the  same,  honestly  and  fairly  and  impartially,  and  accord- 
ing to  the  spirit  and  meaning  of  the  law  of  the  State  of 
Tennessee,  if  not  strictly  within  the  letter  of  the  statute, 
and  that  a  fair  expression  of  public  opinion  has  been  ob- 
tained at  the  several  places  referred  to,"  and  for  these  rea- 
sons the  committee  reported  against  excluding  the  vote  of 
these  precincts,  and  the  House  adopted  the  report. 

§  230.  Under  the  laws  of  some  of  the  States  it  is  neces- 
sary to  keep  separate  boxes  for  the  reception  of  ballots  for 
State  officers  and  for  members  of  Congress.     In  cases  where 


174  ELECTIONS.  [chap.  VII. 

by  mistake  ballots  have  been  dropped  into  the  wrong  box,  as, 
for  instance,  ballots  for  a  member  of  Congress  placed  in  the 
box  for  State  oflBcers,  some  question  has  been  made  as  to  the 
right  of  the  judges  of  the  election  to  correct  such  mistake 
by  removing  such  ballots  from  the  wrong  box  to  the  right 
one.  In  the  lower  House  of  Congress  it  has  been  held  that 
ballots  once  deposited  in  the  wrong  box  were  lost  and  could 
not  be  changed  to  the  right  one  either  by  the  voter  or  the 
officers  of  the  election.^  But  the  same  question  arose  again 
in  the  House  in  the  more  recent  case  of  Newlam,d  v.  Gra- 
ham? In  that  case  one  of  the  judges  of  the  election  testi- 
fied that  he  and  the  other  judges,  finding  that  a  few  ballots 
had  been  by  mistake  placed  in  the  wrong  box,  had  them 
changed.  There  was  no  doubt  as  to  the  mistake,  nor  that 
the  judges  acted  fairly  and  in  good  faith.  The  committee 
submitted  to  the  House  the  question  whether  these  ballots 
should  be  counted  —  at  the  same  time,  however,  intimating 
very  clearly  their  opinion  that  they  should  be.  In  this  case 
the  recommendation  of  the  committee  was  not  adopted  by 
the  House,  or  at  least  was  adopted  only  in  part,  the  seat 
being  declared  vacant  while  the  committee  recommended 
the  seating  of  the  contestant.' 

§  231.  The  question,  therefore,  being  unsettled  by  the  de- 
cisions of  the  House,  let  us  inquire  what  is  the  safe  and 
sound  rule  upon  the  subject.  A  little  reflection  will  satisfy 
any  one  that  the  doctrine  of  the  report  in  Washhum  v.  Rijp- 
ley  *  is  open  to  grave  objections.    In  the  first  place  it  puts 

1  Washburn  v.  Ripley,  CI.  &  H.,  679. 

2 1  Bart,  5. 

3  [Ballots  cast  at  an  annual  town  meeting  containing  only  the  names 
of  candidates  for  excise  commissioners,  separate  from  the  ballots  con- 
taining the  names  of  the  candidates  for  the  other  town  offices,  and  de- 
posited in  a  different  box  from  that  in  which  the  ballots  for  the  other 
town  officers  were  deposited,  should  not  be  counted  under  the  ballot 
law  of  1890  (New  York),  which  required  that  the  names  of  all  candi- 
dates for  town  offices,  including  the  commissioners  of  excise,  should  be 
upon  one  ballot,  and  that  all  ballots  cast  should  be  deposited  in  one  box. 
Montgomery  v.  O'Dell,  67  Hun,  169.] 

*  Supra. 


CHAP.  VII.]  REGULATIONS.  175 

it  within  the  power  of  a  corrupt  election  officer  to  deprive 
the  voter  of  his  ballot,  by  designedly  placing  it  in  the  wrong 
box,^  and,  in  the  second  place,  it  accomplishes  the  same  re- 
sult in  case  the  ballot  is  placed  in  the  wrong  box  by  accident 
or  mistake.  It  is  a  rule  well  grounded  in  justice  and  rea- 
son, and  well  established  by  authority  and  precedent,  that 
the  voter  shall  not  be  deprived  of  his  rights  as  an  elector, 
either  by  the  fraud  or  the  mistake  of  the  election  officer,  if 
it  is  possible  to  prevent  it.^  It  does  not  appear  from  the  re- 
port in  Washburn  v.  Ripley  that  any  proof  was  offered  to 
establish  the  mistake,  beyond  the  simple  fact  that  the  ballots 
were  found  in  the  wrong  box.  It  is  evident  that  the  proof 
should  go  farther  than  this.  It  should  be  shown  that  the 
ballots  were  handed  in  by  legal  voters,  and  deposited  in  the 
wrong  box  by  the  mistake,  accident  or  fraud  of  the  officer, 
and  any  facts  and  circumstAnces  tending  to  establish  or  to 
disprove  this  proposition  should  be  brought  out  in  evidence. 
§  232.  It  is  safe  to  say  that  a  mistake  should  always  be 
corrected,  if  it  can  be  corrected,  and,  therefore,  the  purpose 
of  the  party  seeking  to  get  the  benefit  of  ballots  cast  into 
the  wrong  box  should  be  to  prove  that  they  were  good  and 
honest  ballots,  and  were  placed  there  by  mistake  or  without 
his  fault.  Wherever  this  is  clearly  shown,  the  mistake  may 
be  corrected,  if  not  by  the  officers  of  election,  at  least  by  the 
tribunal  trying  the  contest ;  but  if  it  is  not  a  clear  case  of 
mistake,  or  if  there  is  any  appearance  of  fraud  on  the  part 
of  the  voter,  the  ballot  should  be  rejected.  In  other  words, 
the  party  who,  in  case  of  a  contest,  claims  that  ballots 
found  in  the  wrong  box  should  be  counted,  should  be  put  to 
the  proof  that  such  ballots  were  fairly  and  honestly  cast  by 
legal  voters.  It  is  unjust  that  the  voter  should  be  disfran- 
chised because  the  officer  receiving  his  ballot  deposited  it  in 
the  wrong  box.  In  determining  this  and  similar  questions, 
in  cases  of  contested  elections,  it  should  be  kept  constantly 
in  mind  that  the  ultimate  purpose  of  the  proceeding  is  to 

1  [Pennington  v.  Hare,  60  Minn.,  146.] 

2  [Moyer  v.  Van  de  Venter,  12  Wash.,  377.] 


176  ELECTIONS.  [chap.  VII. 

ascertain  and  give  expression  to  the  will  of  the  majority,  as 
expressed  through  the  ballot-box  and  according  to  law. 
Eules  should  be  adopted  and  construed  to  this  end,  and  to 
this  end  only. 

§  233.  The  view  here  expressed  is  fully  confirmed  by  the 
decision  of  the  Supreme  Court  of  Michigan  in  People  v. 
Bates}  In  that  case  it  was  held  that  an  elector  is  not  to  be 
deprived  of  his  vote  either  by  the  mistake  or  fraud  of  an  in- 
spector in  depositing  it  in  the  wrong  box,  if  the  intention 
of  the  voter  can  be  ascertained  with  reasonable  certainty .^ 
Nor  should  ballots  be  rejected  because  of  being  put  in  the 
wrong  box  by  the  honest  mistake  of  the  voters  themselves.* 
In  that  case  a  State  and  city  election  were  both  held  at  the 
same  time  and  place,  under  the  charge  of  the  same  officers, 
and  seven  ballots  for  city  officers  were  found  at  the  closing 
of  the  poll  in  the  State  box.  The  circumstances  of  the  case 
made  it,  in  the  opinion  of  the  court,  reasonably  certain  that 
these  ballots  were  in  good  faith  put  in  by  electors,  and  they 
were  accordingly  counted. 

§  234.  Inspectors  of  election  have  no  authority,  on  the 
assertion  of  one  who  claims  to  have  voted  by  mistake  in  the 
wrong  precinct,  to  withdraw  from  the  ballot-box  and  destroy 
a  ballot  which  he  identifies  as  the  one  or  similar  to  the  one 
he  had  voted.  The  officers  of  election  have  no  control  over 
ballots  once  deposited  which  will  enable  them  to  take  any 
such  action ;  and  if  they,  under  a  mistaken  idea  of  their  au- 
thority, withdraw  and  destroy  a  ballot  supposed  to  have  been 
deposited  by  mistake,  the  person  who  claims  to  have  voted 
such  ballot  cannot  vote  at  the  same  election  at  another 
place.* 

§  235.  It  sometimes  happens  that  the  officers  of  election, 
though  acting  in  good  faith,  commit  errors  which  will  vitiate 
the  election.     Thus,  if  they  have  adopted  an  erroneous  rule 

1 11  Mich.,  362. 

» [The  same  view  adopted  in  State  v.  Horan,  85  Wia,  94] 

»[Peard  v.  State,  34  Neb.,  372.] 

*  Harbaugh  v.  Cicott,  33  Mich.,  241. 


CHAP.  VII.]  EEGTJLATI0N8.  177 

in  regard  to  the  qualifications  of  voters,  by  which  legal 
votes  were  excluded,  or  illegal  votes  admitted,  in  numbers 
suiBcient  to  change  or  to  render  doubtful  the  result,  the 
election  is  void,  unless  there  is  proof  upon  which  the  poll 
can  be  purged  of  illegal  votes  and  the  true  result  shown. ^ 
And  in  such  a  case,  if  the  erroneous  rule  affects  a  class  of 
voters,  and  it  has  become  generally  known  to  the  persons 
who  are  excluded  by  it,  they  may  submit  to  it,  without 
waiving  any  rights,  although  they  do  not  present  themselves 
at  the  polls  and  offer  their  ballots.  They  have  the  right  to 
take  notice  of  the  decision  of  the  board  in  other  cases  pre- 
cisely like  their  own.  To  require  each  voter  belonging  to  a 
class  of  excluded  voters  to  go  through  the  form  of  present- 
ing his  ballot,  and  having  a  separate  ruling  in  each  case, 
would  be  an  idle  and  useless  formality.  We  are  to  look  at 
the  substance  and  not  the  formality .^ 

§  236.  In  accordance  with  the  rule  that  the  errors  of  a 
returning  officer  shall  not  prejudice  the  rights  of  innocent 
parties,  it  has  been  held  that  where  it  was  the  duty  of  the 
presiding  officer  to  return  the  votes  sealed  up,  a  return  of 
them  unsealed,  in  the  absence  of  any  proof  or  suspicion  of 
fraud,  is  good.  Also,  that  where  the  statute  prescribes  the 
form  of  a  certificate  of  the  votes  given  to  be  executed  by  an 
officer  of  the  election,  it  is  sufficient  if  the  certificate  is  sub- 
stantially according  to  such  form,  and  a  literal  following  of 
the  form  is  not  required.'    Also,  that  if  the  presiding  offi- 

1  [Where  a  village  and  a  town  in  which  it  is  situated  are  separate  and 
independent  municipalities,  the  votes  of  the  villagers,  to  be  legal,  must 
be  oast  at  the  proper  polling  place  of  the  village,  and  not  at  that  of 
the  town,  even  though  the  places  are  near  together,  and  by  mistake  of 
the  officers  no  separate  election  is  held  at  the  village  polling  place. 
State  V.  Alder,  87  Wis.,  554.] 

2  §276. 

3  [Stinson  v.  Sweeney,  17  Nev.,  309.    Where  the  election  officers  of  a 
township  were  furnished  by  the  county  clerk  with  official  ballots 
printed  on  white  paper,  and  also  with  sample  ballots  printed  on  col-  j 
ored  paper,  in  a  separate  package,  and  where  by  mistake  the  sample 
ballots  were  used  by  all  the  voters  of  that  township,  and  the  official 

12 


178  ELECTIONS.  [chap.  VH. 

cer,  by  mistake,  insert  the  wrong  name  in  his  return  of  per- 
sons voted  for,  the  error  may  be  corrected.^  And  in  the  same 
case  it  was  held  that  votes  fairly  given,  and  not  returned  at 
all,*may  be  proven  and  allowed.* 

§  23Y.  The  same  principle  was  recognized  and  enforced 
by  the  House  of  Representatives  of  the  United  States  in 
Root  V.  Adams^  where  it  was  held  that  the  error  of  a  clerk 
in  incorrectly  spelling  the  name  of  one  of  the  candidates  in 
making  the  return  of  the  election  should  be  corrected  by  the 
House  as  soon  as  ascertained.  And  when,  by  such  correc- 
tion, it  was  made  apparent  that  the  contestant  had  a  major- 
ity of  the  legal  votes,  he  was  admitted  to  the  seat. 

§  238.  And  in  Guy  on  v.  /S«^d  *  the  House  corrected  a  mis- 
take in  the  inspectors'  return,  by  which  the  word  "  junior  " 
was  omitted  when  it  ought  to  have  been  inserted.  There 
are,  of  course,  two  kinds  of  errors  and  mistakes,  which  may 
occur  in  making  up  the  returns  of  an  election,  viz.,  such  as 
may  be  corrected  from  what  appears  upon  the  face  of  the 
record,  without  a  resort  to  extrinsic  evidence,  and  such  as 
cannot  be  so  corrected.  In  the  case  of  a  mistake  of  the 
former  kind,  it  may  be  corrected  by  the  court  or  tribunal 
trying  the  contest,  as  soon  as  discovered ;  but  if  a  mistake 
occur  which  cannot  be  corrected  by  the  record  —  that  is  to 
say,  one  which  is  not  apparent  upon  the  face  of  the  record, — 
evidence  aliunde  is  admissible,  and  should  always  be  re- 
sorted to  to  correct  it,  and  to  establish  the  very  truth  of  the 
matter. 

§  239.  A  statute  of  Kentucky  required  all  votes  to  be 
given  in  the  presence  of  the  high  sheriff  of  the  county  or  his 

ballots  on  white  paper  were  all  returned  unused  by  the  judges  of  elec- 
tion, and  the  election  in  such  township  was  conducted  regularly  in 
every  other  respect,  and  the  ballots  used  by  the  electors  of  all  political 
parties  were  of  the  same  color,  held,  that  such  ballots  were  rightly 
counted.    Boyd  u  Mills,  53  Kan.,  594.] 

1  Mallary  v.  Merrill,  CL  &  H.,  329. 

«See,  also,  Golden  v.  Sharpe,  CL  &  H.,  869. 

•CL&H.,  271. 

♦CL&H.,  348. 


CHAP.  VII.]  KEQULATIONS.  179 

deputy.  In  Letcher  v.  Moore  ^  it  appeared  that  at  one  of  the 
polls  both  the  high  sheriff  and  his  deputy  were  absent  for 
several  hours.  The  sheriff  had  been  called  away  by  sick- 
ness in  his  family,  and  after  he  left,  and  before  the  arrival 
of  his  deputy,  a  number  of  votes  were  cast  by  legal  voters. 
The  only  objection  to  these  votes  was  that  they  were  not 
given  in  the  presence  of  the  sheriff  or  his  deputy.  A  ma- 
jority of  the  committee  reported  in  favor  of  rejecting  these 
votes,  but  the  House,  upon  principles  perfectly  sound,  re- 
versed this  decision,  and  ordered  the  votes  to  be  counted. 
The  House  in  the  same  case  and  upon  similar  grounds  over- 
ruled the  decision  of  the  committee  rejecting  certain  votes, 
otherwise  legal,  for  the  reason  that  they  were  cast  while  one 
of  the  judges  of  the  election  was  not  present,  and  while  one 
Moses  Grant  was  acting  under  an  illegal  appointment  by  the 
sheriff. 

§  240.  An  election  will  not  be  held  void  and  set  aside  on 
the  ground  that  the  mere  police  regulations  of  the  election 
law  under  which  it  was  held  were  unconstitutional.  The 
citizens  possess  the  prerogative  of  voting,  and  the  Legisla- 
ture cannot  take  that  right  away  by  encompassing  an  elec- 
tion law  with  unconstitutional  provisions.  If  the  voters 
think  proper  to  go  forward  and  vote  under  a  defective  law, 
those  who  were  candidates  ought  to  be  the  last  to  complain 
when  the  result  has  been  affected  by  neither  the  unconsti- 
tutionality of  the  law,  fraud,  error  nor  collusion."  But,  of 
course,  where,  by  reason  of  the  enforcement  of  unconstitu- 
tional and  void  regulations,  even  of  a  police  character,  the 
result  is  affected,  the  rule  is  different ;  and  in  such  a  case 
the  election  cannot  stand. 

§  241.  A  statute  of  Pennsylvania  provides  that  upon  the 
petition  of  at  least  five  citizens  of  the  county,  stating  under 
oath  that  frauds  are  apprehended  in  any  election  district  of 
such  county,  the  Court  of  Common  Pleas  may  appoint  two 
judicious,  sober  and  intelligent  citizens  of  the  county  to  act 

ICL&H.,  84a 

2  Andrews  v.  Lancier,  13  La.  Ann.,  301. 


180  ELECTIONS.  '[OHAP.  Vn. 

as  overseers  of  said  election,  said  overseers  to  have  the  right 
to  be  present  with  the  officers  of  the  election  during  the 
whole  time  the  same  is  held,  the  votes  counted  and  the  re- 
turns made  out  and  signed  by  the  election  officers.  They 
are  to  keep  a  list  of  voters,  if  they  see  proper,  to  challenge 
voters,  and  generally  to  aid  in  preventing  or  detecting  frauds. 
The  statute  further  provides  that  if  the  officers  of  the  elec- 
tion "  shall  refuse  to  permit  said  overseers  to  be  present  and 
perform  their  duties  as  aforesaid,  or  if  they  shall  be  driven 
away  from  the  polls  by  violence  or  intimidation,  all  the 
votes  polled  at  such  election  district  may  be  rejected  by  any 
tribunal  trying  a  contest  under  said  election."  In  Re  Duffy  ^ 
it  was  held  that  where  overseers  duly  appointed  under  this 
statute  were  not  permitted  to  serve,  but  were  driven  away 
by  threats  and  intimidation,  there  is  necessarily  such  a  vio- 
lent presumption  of  fraud  that,  in  the  absence  of  a  perfect 
showing  of  legality,  fairness  and  regularity,  the  whole  poJl 
should  be  invalidated.  "  In  the  absence  of  any  improper 
conduct  on  the  part  of  overseers  appointed  by  the  Court  in 
conformity  with  plain  statutory  requirement,"  says  the 
Court  in  that  case,  "  we  can  hardly  conceive  of  an  excuse  for 
not  permitting  them  to  serve,  or  for  driving  them  away, 
which  ought  to  find  favor  or  apology." 

§  242.  In  the  case  of  Duffy ^  sujpra^  the  Court  laid  down 
the  rule  that  incompetency,  inefficiency,  and  a  reckless  dis- 
regard of  essential  requirements  of  the  law  on  the  part  of 
officers  conducting  an  election,  to  such  an  extent  as  that 
their  acts  become  unreliable,  must  of  necessity  work  the 
same  result  as  actual  fraud.  ]S'o  doubt  this  is  so,  for  it  may 
be  regarded  as  a  fundamental  principle  of  the  law  of  elec- 
tions that  whatever  renders  the  returns  or  certificates  of 
election  officers  unreliable,  or  which,  in  other  words,  destroys 
their  value  as  evidence,  is  sufficient  to  set  them  aside  and  to 
make  it  necessary  to  prove  the  fairness  and  legality  of  the 
election  by  other  evidence.  Speaking  of  this  rule,  however, 
the  Court,  in  the  case  just  cited,  well  says:  "While  this  is 

UBrewst.,  531. 


OHAP.  Vn.]  REGULATIONS.  181 

the  only  safe  and  true  doctrine,  still,  a  construction  might  be 
given  to  the  statutes  relating  to  elections  so  strict  as  to 
foster  and  encourage  fraud,  rather  than  to  crush  it  and  stamp 
it  out."  1 

§  243.  The  opinion  of  the  Judges  of  the  Supreme  Court 
of  Maine,^  in  answer  to  questions  submitted  by  the  Governor, 
growing  out  of  the  election  and  return  of  members  of  the 
Legislature  of  that  State,  is  important  as  illustrating  the 
doctrine  that  statutes  regulating  elections  are  to  be  con- 
strued, if  possible,  so  as  to  give  full  effect  to  the  will  of  the 
electors  as  expressed  by  their  ballots.  The  following,  among 
other  propositions,  were,  in  substance,  laid  down  by  the 
judges : 

1.  If  it  appears  to  the  House  of  Eepresentatives  that  there 
was  an  election  of  Representatives  from  any  district,  in  fact, 
they  should  admit  the  persons  elected  to  their  seats,  though 
no  return  thereof  was  made  to  the  Secretary  of  State.  The 
Representative  is  not  to  be  deprived  of  his  rights  because 
election  officers  have  neglected  their  duty. 

2.  The  Constitution  of  Maine  calls  for  a  return  that  is 
regular  in  essential  forms,  and  which  truly  represents  the 
facts  to  be  described  by  it ;  but  much  of  the  constitutional 
requirement  is  directory  merely.  It  does  not  aim  at  depriv- 
ing the  people  of  their  right  of  suffrage  or  of  their  right  of 
representation  for  formal  errors,  but  aims  at  avoiding  such 
a  result.  The  object  of  the  constitutional  provisions  respect- 
ing elections  is  to  furnish  as  many  safeguards  as  may  be 
against  failure,  either  through  fraud  or  mistake,  correctly  to 
ascertain  and  declare  the  will  of  the  people  as  expressed  in 
the  choice  of  their  officers  and  legislators. 

3.  A  statute  which  permits  the  correction  of  an  error  or 

1  [The  return  of  a  poll  by  the  commissioners  of  an  election  is  prima 
facie  correct,  and  will  not  be  reversed  because  of  the  misconduct  of 
election  officers  or  other  persons,  unless  it  plainly  appears  that  such  mis- 
conduct changed  the  result  of  the  election.  Dial  v.  HoUingsworth,  39 
W.  Va.,  1;  Minear  v.  Tucker,  39  W.  Va.,  637.] 

2  Justices'  Opinion,  68  Me.,  587. 


182  ELECTIONS.  [chap.  TII. 

omission  in  the  return  by  reference  to  the  duplicate  state- 
ment on  record  must  be  construed  as  mandatory,  being 
within  the  well-known  rule  which  requires  permissive  words 
to  be  so  construed  when  public  rights  are  concerned.  Such 
a  statute  imposes  a  duty  to  the  public  that  must  be  per- 
formed. 

4.  Where  the  board  of  aldermen  of  a  city  act  as  the  re- 
turning board  to  certify  the  result  of  an  election  in  such 
city,  the  return  must  be  made  by  a  quorum  of  the  board ; 
but  a  quorum  (or  majority)  of  the  board  being  present,  a 
majority  of  that  quorum  may  decide  any  question  arising, 
and  if  the  return  is  signed  by  the  majority  of  a  quorum  it 
is  sufficient.  Bodies  composed  of  a  definite  number  of  per- 
sons act  by  the  majority  of  those  present,  provided  those 
present  constitute  a  majority  of  the  whole  number.^ 

6.  The  law  of  Maine  provides  that  returns  shall  be  made, 
signed  and  sealed  up  in  open  town  meeting.  Where  such 
returns  are  presented  to  the  Governor  and  Council,  and  pur- 
port to  have  been  made,  signed  and  sealed  up  as  this  law 
requires,  they  constitute  the  basis  of  action  by  the  canvass- 
ing board,  and  they  haVe  no  power,  in  the  absence  of  express 
authority,  to  receive  evidence  to  negative  the  facts  therein 
set  forth.  The  statement  of  the  election  officers  is,  in  this 
respect,  conclusive  upon  the  canvassing  board. 

6.  Where  in  a  return  the  name  of  one  person  is  written 
out  with  the  number  of  votes  given  him  opposite  to  his  name, 
and  other  names  are  written  under  his  with  little  dots  or 
marks  placed  under  the  figures  or  words  of  the  first  candi- 
date's vote,  the  returns  should  be  counted  where  it  appears 
by  the  letters  or  figures  in  the  first  line,  and  by  ditto  marks 
or  by  dots  in  the  following  lines,  that  the  same  class  of 
candidates  have  received  the  same  vote.  There  can  be  no 
ground  for  the  rejection  of  the  word  "  ditto  "  and  its  abbre- 
viation "  do ; "  and  dots  or  marks  that  stand  for  the  word 
"  ditto  "  are  in  common  use  and  have  a  perfectly  well-defined 

15  Dane's  Abridgment,  150;  1  DilL  Mun.  Corp.,  Sees.  216,  217. 


CHAP.  VII.  J  KEGULATI0N8.  183 

meaning  known  to  persons  generally,  and  which  should  not 
be  disregarded. 

7.  The  Governor  and  Council  may  inquire  into  a  charge 
that  the  signatures  of  the  officers  who  sign  a  return  are  not 
genuine,  or  that  the  returns  have  been  altered;  but  in  consid- 
ering any  such  charge  due  notice  should  be  given  to  the  par- 
ties in  interest,  and  all  witnesses  examined  should  be  duly 
sworn.  The  genuineness  of  the  returns  in  these  particulars 
is  to  be  presumed,  and  this  presumption  remains  until  over- 
come by  evidence. 

8.  Where  two  lists  of  votes  are  returned  from  the  same 
town  and  materially  differ  from  each  other,  the  return  first 
received  must  be  the  basis  of  the  action  of  the  canvassing 
board. 

9.  Upon  the  general  subject  of  the  spirit  in  which  elec- 
tion laws  should  be  interpreted  and  executed,  the  judges  use 
the  following  strong  but  appropriate  language : 

"This  government  rests  upon  the  great  constitutional 
axiom  that  all  power  is  inherent  in  the  people.  *  It  is  a 
government  of  the  people,  by  the  people  and  for  the  people,' 
and,  if  administered  in  the  spirit  of  its  founders,  '  it  shall 
not  perish  from  the  earth.'  Its  Constitution  was  formed,  to 
use  the  apt  expression  of  one  whose  memory  is  embalmed  in 
the  hearts  of  his  countrymen,  '  by  a  plain  people,'  and  a 
'  plain  people '  must  administer  it.  The  ballot  is  the  pride 
as  well  as  the  protection  of  all.  It  is  the  truest  indication 
of  the  popular  will.  The  official  returns  required  from  the 
municipal  officers  of  the  several  plantations,  towns  and  clues 
are  and  will  be  made  by  '  plain  people,'  and  made,  too,  in 
the  hurry  and  bustle  and  excitement  of  an  election.  They 
are  not  required  to  be  written  with  the  scrupulous  nicety  of 
the  writing-master  or  with  the  technical  accuracy  of  a  plea 
in  abatement.  A  sentence  may  be  ungrammatical,  the  spell- 
ing may  deviate  from  the  recognized  standard,  but  the  re- 
turns are  not  brought  to  naught  because  the  penmanship 
may  be  poor,  the  language  ungrammatical,  or  the  spelling 
erroneous.     It  is  enough  if  the  returns  can  be  understood. 


184  ELECTIONS.  [chap.  vh. 

and,  if  understood,  the  full  effect  should  be  given  to  their 
natural  and  obvious  meaning.  They  are  not  to  be  strangled 
by  idle  technicalities,  nor  in  their  meaning  to  be  distorted 
by  carpings  and  captious  criticisms.  When  that  meaning  is 
ascertained  there  should  be  no  hesitation  in  giving  it  full 
effect."  1 

§  244.  In  case  a  foreign  State  is  acquired  or  annexed  to 
the  United  States,  it  does  not  come  to  us  with  its  political 
organization  intact,  but  upon  the  acquisition  it  is  incumbent 
upon  the  United  States  to  establish  a  government  for  such 
State.  Hence,  it  was  held  upon  this  ground  that  the  Terri- 
tory of  New  Mexico,  which  had  been  a  duly  organized  Ter- 
ritory of  the  Mexican  Republic,  could  not,  upon  being  ac- 
quired by  the  United  States,  proceed  to  elect  a  delegate  to 
Congress  in  advance  of  .the  establishment  of  a  Territorial 
government  therein.^  The  same  rule  would  doubtless  apply 
to  any  Territory  of  the  United  States,  and  an  act  of  Congress 
organizing  the  Territory  and  authorizing  the  inhabitants  to 
choose  a  delegate  will  in  all  cases  be  held  indispensable  to 
the  validity  of  an  election  for  delegate  in  Congress.' 

§  245.  "When  the  people  of  an  organized  Territory  have 
been  empowered  by  Congress  to  form  a  Constitution  pre- 
paratory to  admission  into  the  Union,  they  may,  in  antici- 
pation of  such  admission,  elect  Representatives  in  Congress, 
who,  in  the  event  of  the  admission  of  such  Territory  as  a 
State,  will  be  entitled  to  their  seats.  The  act  of  admission 
relates  back  to  and  legalizes  every  act  of  the  Territorial  au- 
thorities exercised  in  pursuance  of  the  enabling  act.*  But 
if  the  Territory  is  not  organized  at  the  time  of  the  holding 
of  an  election  for  delegate,  the  same  is  void.' 

§  246.  Whether,  when  a  State  government  is  formed  of 
a  part  of  an  organized  Territory,  the  remainder  of  such  Ter- 

1  [Fowler  v.  State,  68  Tex.,  30.] 

2  Case  of  Hugh  N.  Smith,  1  Bart,  107. 

'See,  also,  Case  of  A,  W.  Babbitt,  of  Deseret,  1  Bart,  116;  Case  of 
W.  S.  Messervy,  Id.,  148. 
♦  Case  of  Phelps  and  Cavanaugh,  of  Minnesota,  1  Bart,  248. 
»  Case  of  J.  S.  Casement,  2  Bart,  516. 


CHAP.  Vn.]  EEGULATIONS.  185 

ritory  continues  to  enjoy  the  benefits  of  the  original  Terri- 
torial organization,  and  among  them  the  right  to  be  repre- 
sented in  Congress  by  a  delegate,  seems  to  be  an  unsettled 
question.  In  Fuller  v.  Kingsbury  ^  the  House  held,  against 
the  report  of  the  majority  of  the  committee,  that  upon  the 
admission  of  the  State  of  Minnesota  the  Territory  of  Minne- 
sota ceased  to  be,  and  that  so  much  of  the  Territory  as 
lay  outside  of  the  limits  of  the  State  was  left  without  any 
legally  organized  government,  and  that  the  people  thereof 
were  not  entitled  to  elect  a  delegate  in  Congress  until  that 
right  was  conferred  upon  them  by  statute.  And  this  ruling 
would  seem  to  accord  with  reason ;  and  yet  it  appears  that 
the  opposite  rule  was  adopted  in  the  case  of  Paul  Fearing, 
of  Ohio  Territory,  in  1802,  and  in  the  case  of  Henry  H.  Sib- 
ley, of  Wisconsin  Territory,  in  1848.^  There  may  be  a  dis- 
tinction between  a  case  where  the  Territory  is  very  large 
and  a  State  is  formed  out  of  it,  leaving  yet  a  large  territory 
and  considerable  population  within  the  original  territorial 
limits,  and  one  where  the  State,  when  formed,  embraces  the 
principal  part  of  the  Territory  and  its  population,  and  this 
may  explain  the  apparent  conflict. 

1 1  Bart,  251. 

2  See  report  of  majority  of  committee  in  Fuller  v.  Kingsbury,  suprcu 


CHAPTER  VIII. 

ELECTION   OFFICERS  —  QUALIFICATIONS,  POWERS   AND 

DUTIES. 

1247-252.    Validity  of  acts  of  officers  de/acfo. 
253.    Color  of  authority  defined. 
254    Temporary  departure  of  officer,  no  abandonment 

255.  The  office  must  lawfully  exist. 

256.  State  and  Federal  officials  may  act  at  same  election. 

257.  Paramount  authority  of  latter  with  respect  to  Federal  elections, 
256, 257.    Liability  of  State  officials  under  act  of  Congress  in  certain 

cases. 

258.  Election  officers  not  to  be  interfered  with. 

259.  Duty  of  certifying  officer. 

260.  Duty  of  canvassing  officer. 

261.  What  duties  are  ministerial. 

262-266.  Canvassers  can  receive  no  evidence  outside  of  returns  un- 
less expressly  authorized  by  law. 

267,  268.  Canvassing  board  has,  in  general,  no  power  after  adjourn- 
ment to  reconvene  and  recount  vote. 

269,  270.  But  may  be  compelled  by  mandamus  to  re-assemble  and 
complete  its  work  in  certain  cases. 

371.    Amending  returns  under  statute  of  Massachusetts. 

272.  Partial  canvass  not  sufficient. 

273.  Governor  of  State  not  an  election  officer  within  meaning  of  act 

of  Congress  of  May  31,  1870. 

274.  Law  presumes  validity  of  official  acts  of  an  election  officer. 
274,  275.    Adjournment  of  an  election  by  order  of  proper  officer  pre- 
sumed to  be  valid. 

276.  No  right  to  organize  independent  or  outside  polls. 

277.  Effect  of  division  of  election  precinct. 

278.  Facts  which  may  be  certified. 

279.  No  power  over  ballot  after  same  is  deposited. 

280.  Duty  of  town  clerk  under  law  of  New  Hampshire. 

281.  Opening  and  closing  polls. 

282.  Time  within  which  official  act  shall  be  performed. 

283.  Provisions  as  to  mode  and  manner  generally  directory. 

284.  Number  of  voting  placea 

285.  286.    Fraudulent  refusal  to  establish  voting  places. 

287.  When  judges  may  refuse  to  administer  oath  to  voter. 

288.  Failure  to  appoint  inspectors  of  election  within  time  re  quired. 


CHAP.  "VIII.]  OFFICERS.  187 

§  247.  In  the  House  of  Eepresentatives  of  the  United 
States  there  is  a  conflict  of  decisions  touching  the  validity  of 
the  acts  of  a  person  acting  as  an  officer  of  election,  and  who 
is  such  de  facto  only,  and  not  de  jure.  In  some  of  the 
earlier  cases  in  that  body  it  was  held  that  an  election  con- 
ducted by  persons  not  duly  qualified  was  void.  Thus,  in 
Jackson  v.  Wayne^  it  was  held  that  where  the  law  required 
three  magistrates  to  preside  at  an  election,  a  return  by  three 
persons,  two  of  whom  were  not  magistrates,  was  fatally  de- 
fective.' And  in  McFarland  v.  Culpepper^  it  was  held, 
without  much  consideration  or  discussion,  that  a  failure  on 
the  part  of  election  officers  to  take  the  required  oath  vitiates 
the  election ;  and  this  ruling  was  followed  in  Easton  v.  Scott,^ 
and  in  Draper  v.  Johnson.^  In  Howard  v.  Cooper^  the  vote 
of  a  precinct  was  thrown  out  because  the  election  was  pre- 
sided over  by  but  two  inspectors,  when  the  statute  required 
three ;  and  in  Delano  v.  Morgan^  the  vote  of  one  township 
was  thrown  out,  upon  the  ground  that  one  of  the  three 
judges  was  a  deserter  from  the  Union  army,  and  therefore 
not  capable  of  taking  or  holding  the  office. 

§  248.  On  the  contrary,  however,  the  cases  of  MulliJcen 
V.  Fuller,^  Clarlc  v.  Hall^  Flanders  v.  Hahn^^  and  Blair-; 
V.  Barrett}^  all  seem  to  recognize  the  doctrine  that,  in  the 
absence  of  fraud,  the  acts  of  an  officer  de  facto  of  an  elec- 
tion are  valid  as  to  third  parties  and  the  public.  It  is,  how- 
ever, undeniable  that  prior  to  the  41st  Congress  the  weight 
of  authority  in  the  House  of  Eepresentatives  was  on  the 
side  of  Jackson  v.  WoA/ne,  and  the  other  cases  cited  in  the 

1  Cl.  &,  H.,  47. 

2  [The  same  rule  has  been  adopted  in  Georgia.  Walker  v.  Sanford,  78 
Ga.,  165.] 

3C1.  &H.,  221. 
<C1.  &H.,  272. 
5  Id.,  702. 
6 1  Bart.,  275 
7  2  Bart.,  168. 
8 1  Bart.,  176. 
9  Id.,  215. 
10  Id.,  438,443. 
"  Id.,  313. 


188  ELECTIONS.  [chap.  VIH. 

last  preceding  section,  which  followed  that  ruling,  down  to 
and  including  Delano  v.  Morgan. 

§  249.  But  in  the  case  of  Barnes  v.  Adams^  which  arose 
in  the  Fortj-first  Congress,  the  question  was  reviewed  at 
length,  and  most  of  the  cases  arising  both  in  Congress  and 
the  courts,  were  cited  and  examined,  and  the  conclusion  was 
reached  both  by  the  Committee  and  by  the  House,  that  in 
order  to  give  validity  to  the  official  acts  of  an  officer  of 
elections,  so  far  as  they  affect  third  parties  and  the  public, 
and  in  the  absence  of  fraud,  it  is  only  necessary  that  such 
officer  shall  have  color  of  authority.  It  is  sufficient  if  he  be 
an  officer  de  facto^  and  not  a  mere  usurper.^  The  report  in 
this  case,  after  quoting  from  numerous  decisions,  both  in  the 
House  and  in  the  courts  of  this  country,  continues  as 
follows: 

"  The  question,  therefore,  regarded  in  the  light  of  prece- 
dent or  authority  alone,  would  stand  about  as  follows:  The 
judicial  decisions  are  all  to  the  effect  that  the  acts  of  officers 
de  facto,  so  far  as  they  affect  third  parties  or  the  public,  in 
the  absence  of  fraud,  are  as  valid  as  those  of  an  officer  de 
jure.  The  decisions  of  this  House  are  to  some  extent  con- 
flicting; the  point  has  seldom  been  presented  upon  its  own 
merits,  separated  from  questions  of  fraud;  and  in  the  few 
cases  where  this  seems  to  have  been  the  case  the  rulings  are 
not  harmonious.  In  one  of  the  most  recent  and  important 
cases,  Blair  v.  Barrett^  supra^  in  which  there  was  an  ex- 
ceedingly able  report,  the  doctrine  of  the  courts,  as  above 
stated,  is  recognized  and  indorsed.  The  question  is  there- 
fore a  settled  question  in  the  courts  of  the  country,  and  is, 
so  far  as  this  House  is  concerned,  to  say  the  least,  an  open 
one." 

"Your  committee  feel  constrained  to  adhere  to  the  law  as 
it  exists  and  is  administered  in  all  the  courts  of  the  country, 
not  only  because  of  the  very  great  authority  by  which  it  is 

» 2  Bart.,  760. 

'  [Smith  V.  Jackson,  Row.,  9.] 


CHAP.  VIII.]  OFFICERS.  189 

supported,  but  for  the  further  reason,  as  stated  in  the  outset, 
that  we  believe  the  rule  to  be  most  wise  and  salutary.  The 
officers  of  election  are  chosen  of  necessity  from  among  all 
classes  of  the  people;  they  are  numbered  in  every  State  by 
thousands;  they  are  often  men  unaccustomed  to  the  formali- 
ties of  legal  proceedings.  Omissions  and  mistakes  in  the 
discharge  of  their  ministerial  duties  are  almost  inevitable. 
If  this  Plouse  shall  establish  the  doctrine  that  an  election  is 
void  because  an  officer  thereof  is  not  in  all  respects  duly 
qualified,  or  because  the  same  is  not  conducted  strictly  ac- 
cording to  law,  notwithstanding  it  may  have  been  a  fair  and 
free  election,  the  result  will  be  very  many  contests,  and,  what 
is  worse,  injustice  will  be  done  in  many  cases.  It  will  enable 
those  who  are  so  disposed,  to  seize  upon  mere  technicality  in 
order  to  defeat  the  will  of  the  majority."^ 

§  250.  The  report  of  the  committee  in  this  case  was 
adopted  by  the  House,  nem.  con.^  after  a  full  discussion,' 
and  the  doctrine  there  asserted  may  now  be  regarded  as  the 
settled  law  of  the  House.  The  same  point  was  decided  in 
the  same  way,  and  by  the  same  House,  in  the  case  of  Egglea- 
ton  V.  Strader,^  and  an  admirable  discussion  of  the  question 
will  be  found  in  the  report  of  the  committee  in  that  case 
made  to  the  House  by  Mr.  Hale,  of  Maine.  It  is  true  that 
the  writer  of  the  report  in  the  case  of  Beid  v.  Julian,^  as- 
serted the  contrary  doctrine,  but  the  case  was  decided  inde- 
pendently of  that  question.  It  turned  upon  a  question  of 
fact,  as  to  whether  fraud  was  proven,  so  that  this  case  can 
not  be  regarded  as  an  authority  against  Barnes  v.  Adams, 
and  Eggleston  v.  Strader.  The  doctrine  of  the  latter  cases 
was  reaffirmed  in  the  case  of  Gooding  v.  Wilson,  42d  Con- 
gress. 

§  251.     In  the  courts  of  the  country  the  ruling  has  been 
uniform,  and  the  validity  of  the  acts  of  officers  of  election 

1  [Thobe  V.  Carlisle,  Mob.,  533.] 

2  Cong.  Globe,  July,  1870,  pages  5179  to  5193. 
»2  Bart.,  897. 

<  2  Bart.,  833. 


190  ELECTIONS.  [chap.  VHI. 

who  are  sucli  de  facto  only,  so  far  as  they  affect  third  persona 
and  the  public,  is  nowhere  questioned.  The  doctrine  that 
whole  communities  of  electors  may  be  disfranchised  for  the 
time  being,  and  a  minority  candidate  forced  into  an  oflBce, 
because  one  or  more  of  the  Judges  of  election  have  not  been 
duly  sworn,  or  were  not  duly  chosen,  or  do  not  possess  all 
the  qualifications  requisite  for  the  office,  finds  no  support  in 
the  decisions  of  our  judicial  tribunals.'  We  here  refer  to 
some  of  the  leading  cases.  In  Peoj^le  v.  Gooik^  the  Court 
eays: 

"The  neglect  of  the  officers  of  the  election  to  take  any 
oath  would  not  have  vitiated  the  election.'  It  might  have 
subjected  those  officers  to  an  indictment  if  the  neglect  was 
willful.  The  acts  of  public  officers  being  in  by  color  of  an 
election  or  appointment  are  valid,  so  far  as  the  public  is  con- 
cerned." 

Again: 

"An  officer  de  facto  is  one  who  comes  into  office  by  color 
of  a  legal  appointment  or  election.  His  acts  in  that  capacity 
are  as  valid,  so  far  as  the  public  is  concerned,  as  the  acts  of 
an  officer  de  jure.  His  acts  in  that  capacity  can  not  be  in- 
quired into  collaterally." 

The  same  doctrine  was  laid  down  by  the  Supreme  Court  of 
Minnesota,  in  the  case  of  Ta/ylor  v.  Taylor.^  One  ground 
of  contest  in  this  case  was  that  "  in  certain  towns  at  said 
election  the  judges  and  clerks  of  said  election  did  not  take 
the  prescribed  oath  or  any  oath."     The  Court  say: 

"If  the  votes  of  the  citizens  are  freely  and  fairly  deposited 
at  the  time  and  place  designated  by  law,  the  intent  and  de- 
sign of  the  election  are  accomplished.  It  is  the  will  of  the 
electors  thus  expressed  that  gives  the  right  to  the  office,  and 
the  failure  of  the  officers  to  perform  a  mere  ministerial  duty 
in  relation  to  the  election  can  not  invalidate  it  if  the  electors 

I  [Quinn  v.  Markoe,  87  Minn.,  439.] 
«4Seld.,  67. 

»  [Yeates  v.  Martin,  Ella,  484] 
<10  Minn.,  107. 


CHAP,  Vin.]  OFFICEES.  191 

had  actual  notice  and  there  was  no  fraud,  mistake,  or  sur- 
prise." 

Again  the  Court  say: 

"  If  the  officers  of  election  fail  to  perform  their  duty,  the 
law  provides  a  penalty;  but  the  election  is  not  necessarily 
rendered  void." 

Also,  by  the  Supreme  Court  of  Pennsylvania,  in  the  case  of 
Baird  v.  Bank  of  Washington.  ^  We  quote  a  sentence  from 
the  opinion  in  this  case: 

"  The  principle  of  colorable  election  holds  not  only  in  re- 
gard to  the  right  of  electing,  but  of  being  elected,  A  per- 
son indisjmtahly  ineligible  may  be  an  officer  de  jfacto  by 
color  of  election." 

Also,  by  the  Supreme  Court  of  Illinois,  in  Pritohett  v.  TJie 
People.^     In  the  course  of  the  opinion  the  Court  say: 

"  It  is  a  general  principle  of  the  law  that  ministerial  acts 
of  an  officer  de  facto  are  valid  and  effectual  when  they  con- 
cern the  public  and  the  rights  of  third  persons;  although  it 
may  appear  that  he  has  no  legal  or  constitutional  right  to 
the  office.  The  interests  of  the  community  imperatively  re- 
quire the  adoption  of  such  a  rule." 

The  same  Court,  in  The  People  v.  Ammons^^  hold  the 
same  doctrine,  and  state  it  in  this  language: 

"  The  proof  offered  would  have  shown  that  he  was  an  offi- 
cer de  facto,  and  as  such  his  acts  were  as  binding  and  valid 
when  the  interests  of  third  persons  or  the  public  were  con- 
cerned, as  if  he  had  been  an  officer  de  jure?"* 

The  Supreme  Court  of  Missouri,  in  St.  Louis  Gov/aty 
Court  V.  Sparks j^  says: 

"When  the  appointing  power  has  made  an  appointment, 
and  a  person  is  appointed  who  has  not  the  qualifications  re- 
quired by  law,  the  appointment  is  not  therefore  void.     Tbe 

» 11  S.  &  R.,  411. 

« 1  Gilm.,  525, 539.  .         ■ 

•  5  Gilm.,  107.  ■     ,  , 

« 10  Mo.,  117. 131.  .       ' 


192  ELECTIONS.  [chap.  VIII. 

|)er8on  appointed  is  de  facto  an  oflBcer;  his  acts  in  the  dis- 
icharge  of  his  duties  are  valid  and  binding.  *  *  ■» 
A  statute  prescribing  qualifications  to  an  office  is  merely 
directory,  and  although  an  appointee  does  not  possess  the 
requisite  qualifications  his  appointment  is  not  therefore  void, 
unless  it  is  so  expressly  enacted." 

The  Supreme  Court  of  California,  in  the  case  of  Whipley 
V.  McKune^^  hold  the  same  doctrine.  In  this  case  the 
election  of  McKune  to  the  office  of  district  judge  was  con- 
tested upon  the  ground  that  "the  officers  conducting  the 
election  in  a  given  district  were  not  sworn  as  the  election 
laws  require."  No  fraud  being  shown  the  election  was  held 
valid,  notwithstanding  such  failure  of  the  officers  to  be 
sworn. 

The  Supreme  Court  of  New  York  discusses  this  question 
in  an  elaborate  opinion  in  the  case  of  Tlie  Peojple  v.  Cooh^* 
from  which  we  quote  a  few  sentences: 

"  It  becomes  important  in  this  case  to  determine  whether 
the  objections  which  are  taken  to  the  inspectors  of  elections 
in  the  several  cases  presented  in  the  bill  of  exceptions,  are 
of  that  character  which  should  be  held  to  invalidate  the  can- 
vass in  these  several  localities.  These  objections  are  of  a  two- 
fold character,  extending  to  the  regularity  or  legality  of  their 
appointment  and  to  their  omission  to  qualify  by  taking  the 
proper  oath  of  office.  *  *  *  It  is  sufficient  that  they 
were  inspectors  de  facto.  The  rule  is  well  settled  by  a  long 
series  of  adjudications,  both  in  England  and  this  country, 
that  acts  done  by  those  who  are  officers  de  facto  are  good 
and  valid  as  regards  the  public  and  third  persons  who  have 
an  interest  in  their  acts,  and  the  rule  has  been  applied  to 
acts  judicial,  as  well  as  to  those  ministerial  in  their  char- 
acter. This  doctrine  has  been  held  and  applied  to  almost 
every  conceivable  case.    It  can  not  be  profitaUe  to  enter  into 

>  10  Cal.,  853. 

>  14  Barb.,  259. 


CHAP.  VIII.]  OFFICERS.  193 

any  extended  discussion  of  the  cases.  The  principle  has 
become  elementary,  and  the  cases  are  almost  endless  in  which 
the  rule  has  been  applied." 

So,  in  the  case  of  Greenleaf  v.  Low^^  it  was  held  that  a 
person  elected  to  the  office  of  justice  of  the  peace,  who  neg- 
lected to  take  the  oath  of  office  and  to  give  the  security  re- 
quired by  law,  is  nevertheless  in  office  by  color  of  title,  and 
his  acts  are  valid  as  regards  the  public  and  third  persons. 
The  Court  say: 

"  Sufficient  facts  appeared  to  show  that  Jones  was  a  jnst- 
ice  of  the  peace  de  facto  at  the  time  he  rendered  the  judg- 
ment in  question.  He  came  into  his  office  by  color  of  title. 
It  is  a  well  settled  principle  that  acts  done  by  such  an  officer 
are  as  valid,  so  far  as  the  public  or  the  rights  of  third  per- 
sons are  concerned,  as  if  he  had  been  an  officer  dejure,  and 
that  the  title  of  the  office  can  not  be  collaterally  inquired 
into." 

Exactly  the  same  point  was  decided  in  the  same  way  in 
the  case  of  Weeks  v.  Ellis,^  where  a  justice  of  the  })eace  had 
entered  upon  the  duties  of  his  office  without  taking  the  oath 
prescribed  by  law. 

And  so,  likewise,  in  the  case  of  Keyser  v.  McKissan^* 
it  was  held  that  the  failure  of  county  commissioners  to  take 
the  oath  prescribed  by  the  Constitution  of  Pennsylvania  did 
not  invalidate  their  acts  as  such,  where  the  public  or  third 
persons  were  concerned. 

So,  in  the  case  of  McGregor  v.  Balch^^  it  was  held  that, 
although  a  person  could  not  legally  hold  the  office  of  justice 
of  the  peace  at  all  while  holding  the  office  of  assistant  post- 
master under  the  United  States,  yet,  having  entered  the 
former  office  under  the  formB  of  law,  he  was  a  justice  of  the 

» 4  Denio,  168. 
«  3  Barb.,  324. 
»  2  Rawle,  139. 
*14Vt.,  42a. 
13 


194  ELECTIONS.  [chap.  VHI. 

peace  de  facto,  and  his  acts  as  such  were  valid  as  to  third 
persons  and  the  public.^ 

§  252.  A  mere  usurper  in  an  office  can  have  no  authority, 
and  can  perform  no  valid  official  act.  It  is  enough  if  he 
possess  color  of  authority;  but  without  this,  his  acts  are  void 
even  as  to  third  parties  and  the  public.  It  was  accordiugly 
held  that  where  certain  persons  were  chosen  county  officers 
in  an  unorganized  county  in  a  territory,  by  a  public  meeting 
without  the  shadow  of  legal  right  or  authority,  and  com- 
missioned as  such  by  the  governor,  who  also  acted  without 
any  color  of  right  or  authority,  they  were  usurpers,  and  that 
an  election  held  under  their  authority  was  void.^  In  the 
same  case  the  rule  was  laid  down  that  no  valid  election  can 
be  held  in  an  unorganized  county — and  that  a  county  can 
not  be  considered  as  organized  until  there  has  been  an  elec- 
tion of  county  officers.  * 

§  253.  Sometimes  the  question  may  arise,  which  of  two 
claimants  is  the  officer,  de  facto;  and  in  determing  that 
question,  it  is  only  necessary  to  ascertain  which  is  in  posses- 
sion of  the  office  exercising  the  functions  thereof,  under 
color  of  authority.  By  color  of  authority  is  meant  authority 
derived  from  an  election  or  appointment,  however  irregular 
or  informal,  so  that  the  incumbent  be  not  a  mere  volunteer. 

§  254.  It  has  been  held  that  where  an  office  is  in  dispute 
between  two  persons,  and  the  one  in  actual  possession  tem- 
porarily leaves  the  place  where  the  business  of  the  office  is 
usually  transacted,  with  no  intention  of  abandoning  the 
office  or  of  giving  place  to  his  competitor,  the  latter  can  not, 
with  full  knowledge  of  these  facts,  take  possession  of  the 
office  and  by  proceeding  with  the  performance  of  its  duties, 
make  himself  the  officer  de  facto.     As  between  such  claim- 

1  See,  also,  People  v.  Staton,  73  N.  C,  546;  [State  «.  Goowin,  69  Tex.,  55]. 

2  Daily  v.  Estabrook,  1  Bart,  299. 

•  And  see  Sawyer  v.  Haydon,  1  Nev.,  75,  and  State  u  Collins,  2  Id.,  351, 
where  it  is  decided  that  no  valid  election  can  be  held  except  under 
statutory  authority.    [Van  Amringe  v.  Taylor,  108  N.  C,  196.] 


OHAP.  VIII,]  OFFICERS.  1^5 

ants,  and  under  such  circumstances,  the  one  previously  in 
possession  must  be  regarded  as  the  officer  de  facto} 

§  255.  It  is  manifest  that  the  acts  of  one  claiming  to  be 
an  officer  de  facto  may  be  assailed  on  the  ground  that  the 
office  itself  did  not  lawfully  exist.  The  doctrine  we  are  con- 
sidering applies  to  the  officer  and  not  to  the  office.  There 
can  be  no  such  thing  as  an  office  de  facto.  The  doctrine 
respecting  the  validity  of  the  acts  of  officers  de  facto  pre- 
supposes an  office  which  the  law  recognizes.^  An  officer 
who  by  law  holds  for  a  fixed  term  and  until  his  successor  is 
qualified  is  ad  interim  an  officer;  if  not  de  jure,  at  least 
de  facto? 

[§  256.  Under  the  act  of  Congress,  now  repealed,  pro- 
viding regulations  for  the  conduct  of  elections  for  Kepre- 
sentatives  in  Congress  and  electors  for  President  and  Yice- 
President,  it  often  happened  that  there  were  present  at  the 
same  election  both  State  and  Federal  officials  charged  with 
duties  connected  therewith.  In  such  case  it  has  been  held 
that  each  official  should  be  permitted  to  perform  such  duties 
as  were  required  of  him  by  the  law  under  which  he  acted, 
unless  a  conflict  of  jurisdiction  arose,  in  which  case  the  para- 
mount authority  was  in  the  officer  who  acted  for  the  United 
States  and  under  and  within  the  provision  of  an  act  of  Con- 
gress. This  for  the  reason  that  in  so  far  as  Congress  had 
prescribed  regulations  for  the  control  of  Federal  elections, 
they  superseded  and  annulled  aU  conflicting  regulations  pre- 
scribed by  the  States.*  It  has  accordingly  been  held  that  a 
local  police  officer  had  no  power  to  arrest  a  deputy  United 
States  marshal  while  on  duty  under  the  act  of  Congress  in 
keeping  the  peace  at  a  Federal  election,  nor  to  obstruct  him 

1  Braidy  v.  Theritt,  17  Kan.,  468. 

^Ex  parte  Snyder,  64  Mo„  58;  [Norton  v.  Shelby  Co.,  118  U.  S.,  425; 
Carlton  u  People,  10  Mich.,  250;  People  v.  White,  24  Wend..  539;  Peti- 
tion of  Hinkle,  31  Kan.,  712;  Burt  v.  Winona,  31  Minn.,  473;  36  Alb. 
Law  J.,  506]. 

SThreadgill  v.  Railroad  Co.,  73  N.  C,  178. 

♦  Ex  parte  Siebold,  100  U.  S.,  871;  ante,  §  143  et  seq. 


196  ELECTIONS.  [chap.  vin. 

in  the  performance  of  his  duties.^  In  that  case  it  was  held 
that  such  an  arrest  constituted  an  offense  under  the  act  of 
Congress,  and  that  no  provision  of  a  State  law  could  author- 
ize a  local  policeman  to  obstruct  a  deputy  marshal  in  the 
discharge  of  the  duties  imposed  upon  him  by  act  of  Con- 
gress.^] 

[§  257.  By  virtue  of  Sections  5511-5515  of  the  Kevised 
Statutes  of  the  United  States,  it  was  made  an  offense  against 
the  United  States  for  an  officer  of  election  at  which  a  Eep- 
resentative  in  Congress  was  voted  for,  to  violate  any  duty 
in  regard  to  such  election  imposed  by  the  State  law,  but 
these  provisions  of  the  Federal  statute  did  not  embrace  any 
act  which  had  exclusive  reference  to  the  election  of  State 
and  county  officers,  and  which  did  not  affect  the  choice  of 
such  Eepresentative.'  If,  however,  the  act  charged  was  a 
violation  of  a  State  law  reffulatino^  the  conduct  of  an  elec- 
tion  held  for  the  purpose  of  choosing  Representatives  in 
Congress  and  State  officers,  it  was  not  necessary  for  the 
United  States  to  charge  in  the  indictment  nor  prove  that 
the  intent  was  to  affect  the  election  of  the  former.*] 

§  258.  Where  a  statute  imposes  specific  duties  upon  an 
officer  of  election,  it  is  necessarily  implied  that  he  shall  have 
a  full  and  fair  opportunity  to  discharge  such  duties,  and  that 
he  shall  not  be  hindered,  impeded  or  interfered  with  in  the 

1  United  States  v.  Conway,  18  Blatchf.,  566. 

2  In  the  absence  of  the  marshal  and  his  deputies,  it  has  been  held 
that  a  United  States  supervisor  has  a  right  to  arrest  without  warrant 
any  one  wlio  interferes  with  him  in  the  discharge  of  his  duty  at  and  in 
connection  with  a  Federal  election.  The  use  of  opprobrious  and  offen- 
sive language  may  constitute  such  interferenca  Ex  parte  Geissler,  9 
Biss.  Cir.  Ct.,  492.  It  seems  that  under  the  Revised  Statutes  of  the 
United  States  (Sec.  2021,  now  repealed),  special  deputy  marshals  might 
have  been  appointed  by  the  marshal  to  keep  the  peace  at  Federal  elec- 
tions, whether  supervisors  of  elections  have  been  appointed  or  not 
Re  Deputy  Marshals,  22  Fed.  Rep.,  153.    (Treat,  J.,  dissenting.) 

^Ex  parte  Perkins,  29  Fed.  Rep.,  900,  reversing  ruling  of  United 
States  District  Court  for  Indiana. 

*[!»  re  Coy,  127  U.  S.,  731;  United  States  v.  McBosley,  39  Fed.  Rep.,. 
897.] 


CHAP.  Vni.]  OFFICEKS.  197 

performance  thereof.  It  has  accordingly  been  held  that 
under  Section  2018  of  the  Ee vised  Statutes  of  the  United 
States,  which  provided  that  the  supervisors  of  election  must 
"personally  scrutinize,  count  and  canvass  each  ballot,"  a 
supervisor  had  the  right  not  only  to  be  present  in  the  room 
where  the  ballots  were  counted,  but  also  to  have  each  ballot  in 
his  hands  for  a  reasonable  time  to  enable  him  intelligently 
to  discharge  this  duty.^  The  supervisor  could  not  be  con- 
fined to  the  act  of  watching  the  canvassers  while  they  can- 
vassed and  counted  the  ballots. 

§  259.  Where  the  law  requires  an  inspector  to  sign  and 
certify  election  returns,  he  is  not  at  liberty  to  accept  the  de- 
cision of  the  poll  clerks  and  to  sign  and  certify  the  returns 
as  prepared  by  them.  He  is  charged  with  the  duty  to  ex- 
amine, investigate,  and  thus  to  inform  himself,  for  the  in- 
telligent exercise  of  his  duty.  If  necessary  he  may  correct 
the  returns  or  require  their  correction  before  signing.  He 
cannot  shield  himself  by  pleading  the  errors  or  misconduct 
of  the  poU  clerks.^ 

§  260.  Where  a  statute  required  the  judges  of  election 
in  canvassing  the  vote  to  read  and  announce  each  ballot  by 
itself,  it  was  held  to  be  a  departure  from  its  provisions  to 
divide  the  ballots  into  lots  of  ten  or  twenty,  and  then  read 
and  announce  them  in  the  aggregate,  and  that  a  recount 
should  be  ordered  by  proper  authority  in  such  a  case.' 

In  the  same  case  it  was  also  held  that  a  statute  requiring 
election  judges  to  seal  ujp  the  ballots  is  merely  directory,  and 
is  sufficiently  complied  with  if  the  ballots  are  kept  intact. 
1^0  objection  can  be  found  to  this  ruling  provided  it  be  un- 
derstood that  the  party  asserting  the  validity  of  the  return 
is  bound  in  such  a  case  to  show  affirmatively  that  the  ballots 
have  been  kept  intact.    If  they  are,  in  disregard  of  the  stat- 

1  United  States  v.  aark,  23  Fed.  Rep.,  387. 
2Bolano  v.  People,  25  Hun  (N.  Y.),  42a 
» O'Gorman  v.  Richter,  31  Minn,,  25. 


198  ELECTIONS.  [chap.  vm. 

ute,  returned  open  and  unsealed,  there  should  be  a  showing 
that  they  have  not  been  tampered  with.^ 

§  261.  It  is  well  settled  that  the  duties  of  canvassing 
oflBcers  are  purely  ministerial,  and  extend  only  to  the  casting 
up  of  the  votes  and  awarding  the  certificate  to  the  person 
having  the  highest  number;  they  have  no  judicial  power.^ 
In  State  v.  Steers^  which  was  a  case  in  which  the  canvassing 
board  had  undertaken  to  throw  out  the  returns  from  one 
voting  precinct  for  an  alleged  informality,  the  Court  said : 
"When  a  ministerial  officer  leaves  his  proper  sphere,  and 
attempts  to  exercise  judicial  functions,  he  is  exceeding  the 
limits  of  the  law,  and  guilty  of  usurpation."  And  again : 
"  To  permit  a  mere  ministerial  officer  arbitrarily  to  reject 
returns,  at  his  mere  caprice  or  pleasure,  is  to  infringe  or  de- 
stroy the  rights  of  parties  without  notice  or  opportunity  to 
be  heard  —  a  thing  which  the  law  abhors  and  prohibits."* 

§  262.  But  of  course  it  does  not  follow  from  this  doctrine 
that  canvassing  and  return  judges  must  receive  and  count 
whatever  purports  to  be  a  return,  whether  it  bears  upon  its 
face  sufficient  proof  that  it  is  such  or  not.  The  true  rule  is 
this :  they  must  receive  and  count  the  votes  as  shown  by  the 

1  [Where  the  law  reqtiired  the  canvassing  officers  to  count  the  ballots 
before  the  ballot-box  was  removed  from  the  place  where  the  election 
was  held,  a  disregard  of  this  provision  was  held  to  be  a  sufficient  reason 
for  excluding  the  returns.    Spencer  v.  Morey,  Smith,  437.] 

2Dalton  V.  State  (Ohio),  1  West  Rep.,  773;  Justices'  Opinions,  58  N.  H., 
621;  People  v.  Wayne  Co.  Canvassers,  12  Abb.,  N.  Y.,  New  Cases,  7; 
a  C,  64  How.  N.  Y.  Pr.,  334;  Kortz  v.  Greene  Co.  Canvassers,  12  Abb., 
N.  Y.,  New  Cases,  84;  Leigh  v.  State,  69  Ala.,  261;  [Page  v.  Letcher, 
11  Utah,  119;  39  Pac  Rep.,  499;  State  v.  Van  Camp,  36  Neb.,  91;  People 
V.  Board  of  State  Canvassers,  129  N.  Y.,  360;  Mead  v.  Carroll,  6  D.  C, 
338  J. 

3  44  Mo.,  223. 

*  picKinney  v.  Peers,  91  Va.,  684;  In  re  Woods,  5  Misc.  Rep.,  575;  State 
V.  Wilson,  24  Neb.,  139.  A  common  council  sitting  as  a  board  for  the 
canvassing  of  election  returns  of  members  elected  to  that  body  is  bound 
by  the  returns,  and  cannot  go  behind  the  returns  and  inspect  the  bal- 
lots in  order  to  determine  the  result.  State  v.  Trimbell,  13  Wash., 
440.] 


CHAP.  Vni.]  OFFICERS.  199 

returns,  a/nd  tney  Gormot  go  hehind  the  returns  for  any  pv/r- 
pose^  and  this  necessarily  implies  that  if  a  paper  is  presented 
as  a  return,  and  there  is  a  question  as  to  whether  it  is  a  re- 
turn or  not,  they  must  decide  that  question  from  what  ap- 
pears upon  the  face  of  the  paper  itself.^  Thus,  in  New  York, 
it  has  been  held  that  the  duties  of  the  canvassers  were  "  to 
attend  at  the  proper  office  and  calculate  and  ascertain  the 
whole  number  of  votes  given  at  any  election  and  certify  the 
same  to  be  a  true  canvass;  this  is  not  a  judicial  act,  but 
merely  ministerial ;  they  have  no  power  to  controvert  the 
votes  of  electors.'^ 

§  263.  And  in  Morgan  v.  Quackenbush^  we  find  this  lan- 
guage :  "  They  (the  canvassers)  are  not  at  liberty  to  receive 
evidence  of  anything  outside  of  the  returns  themselves;  their 
duty  consists  in  a  simple  matter  of  arithmetic."  *  In  the 
case  of  People  v.  Head  the  Court  say  "  they  may  probably 
judge  whether  the  returns  are  in  due  form,'  but  after  that 
they  can  only  compute  the  votes  cast  for  the  several  candi- 
dates and  declare  the  result."    But  in  determining  as  to  the 

1  [State  V.  Hill,  20  Neb.,  119;  State  v.  McFadden,  46  Neb.,  668.  The 
duties  of  the  Secretary  of  State  of  the  State  of  Louisiana  in  promul' 
gating  the  returns  of  election  held  to  be  purely  and  exclusively  minis- 
terial. State  V.  Mason,  44  La.  Ann.,  1065.  A  board  of  canvassers  can- 
not inquire  into  the  validity  of  a  certificate  of  nomination  of  a  nominee 
for  office.    State  v.  Board  of  Canvassers  of  Cascade  Co.,  12  Mont.,  537.] 

2  People  V.  Van  Slyck,  4  Conn.,  297,  323.  To  the  same  effect  is  the  rul- 
ing in  Ex  parte  Heath,  8  Hill,  47.  See,  also,  Commonwealth  v.  Em. 
minger,  74  Pa.,  479;  Moore  v.  Jones,  76  N.  C,  182.  For  discussion  of  the 
duties  of  canvassing  oflBcers  in  Ohio,  and  of  the  powers  of  courts  mak- 
ing a  judicial  review  of  the  proceedings,  see  Phelps  v.  Schroder,  26  Ohio 
St.,  549;  pMcKinney  v.  Peers,  91  Va.,  684]. 

»22Barb.,  72,  77. 

<  See,  also,  Thompson  v,  Ewing,  1  Brewst.,  77,  where  it  is  laid  down 
that  the  return  judges  cannot  inquire  into  a  question  of  fraud.  See, 
also.  State  v.  The  Governor,  1  Dutch.  (N.  Y.),  348;  Brown  v.  O'Brien,  3 
Ind.,  423;  State  v.  Jones,  19  Ind.,  856;  People  v.  Kilduff,  15  HL,  492;  Peo- 
ple V.  Head,  25  111.,  325,  328. 

*  [A  canvassing  board  should  reject  the  return  made  by  the  judges  of 
election  if  not  accompanied  by  the  certificate  required  by  statute.  Law- 
rence V.  Schmaulhausen,  123  IlL,  321.] 


200  ELECTIONS.  [chap.  vni. 

form  of  the  returns  they  must  consider  the  substance,  and 
not  be  too  technical.  If  there  is  a  substantial  compliance 
with  the  law  it  is  enough. 

§  264.  The  doctrine  that  canvassing  boards  and  return 
judges  are  ministerial  officers  possessing  no  discretionary 
or  judicial  power  is  settled  in  nearly  or  quite  all  the 
States.^ 

In  Attorney- GeTieral  v.  Barstow,  supra,  the  Supreme  Court 
of  "Wisconsin  say  that  the  canvassing  officers  "  are  to  add  up 
and  certify  by  calculation  the  nuniber  of  votes  given  for  any 
office;  they  have  no  discretion  to  hear  and  take  proof  as  to 
frauds,  even  if  morally  certain  that  monstrous  frauds  have 
been  perpetrated."^ 

§  265.  In  Morgan  v.  Quackenbush '  this  doctrine  was 
again  asserted.  It  was  there  held  that  it  was  the  duty  of  the 
canvassing  board  to  canvass  the  returns  and  declare  the  re- 
sult, and  that  this  was  a  purely  ministerial  act.  They  are 
judges  of  nothing,  and  not  allowed  to  receive  evidence  of 
anything  outside  of  the  returns  themselves,  and  hence  they 
acted  illegally  in  receiving  affidavits  of  fraudulent  practices 
at  the  polls  and  acting  upon  such  evidence.  It  was,  how- 
ever, also  held  that  their  determination,  although  based  upon 

iDishon  v.  Smith,  10  la.,  312;  State  v.  Cavers,  23  la,,  343;  Attorney- 
General  V.  Barstow,  4  Wis.,.  749;  People  v.  Van  Cleve,  1  Mich.,  362;  Thomp- 
son, Circuit  Judge,  9  Ala.,  388;  Mayo  v.  Freeland,  10  Mo.,  629;  State  v. 
Harrison,  38  Mo.,  540;  State  v.  Rodman,  43  Mo.,  256;  State  v.  Steers,  44 
Mo.,  228-9;  Bacon  v.  York  Co.,  26  Me.,  491;  Taylor  v.  Taylor,  10  Minn., 
107;  O'Farrall  u  Colby,  2  Minn.,  180;  Marshall  v.  Kerns,  2  Swan  (Tenn.), 
66;  People  v.  Wayne  Ca  Canvassers,  12  Abb.  (N.  Y.)  New  Cases,  7;  S.  C, 
64  How.  N.  Y.  Pr.,  334;  Leigh  v.  State,  69  Ala.,  261;  Bull  v.  Southwiok, 
2  N.  M.,  321;  [Brown  v.  Rush,  38  Kan.,  436]. 

'  A  board  of  canvassers  sitting  to  correct  voting  lists,  sometimes  exer- 
cises judicial  functions.  Thus,  a  statute  of  Rhode  Island  regulating  the 
functions  of  such  officers  provided  that  "  unless  they  shall  be  furnished 
with  sufficient  evidence  of  the  omission  and  qualifications  as  a  voter  of 
the  person  omitted,"  etc.  It  was  held  that  this  statute  imported  that 
the  canvassers  were  to  judge  of  the  sufficiency  of  the  evidence.  Keenan 
V.  Cook,  13  R.  I.,  153. 

»23Barb.  (N.  Y.),  72. 


€HAP.  VIII.]  OFFIOEES.  201 

illegal  evidence,  must  be  received  as  jprima  facie  evidence 
that  the  person  declared  elected  was  entitled  to  the  office,^ 
and  that  in  attempting  afterwards  to  re-canvass  the  vote  and 
set  aside  their  first  certificate  they  transcended  their  author- 
ity, and  assumed  a  power  belonging  only  to  a  tribunal 
authorized  to  try  cases  of  contested  elections  under  the  law.' 

§  266.  There  are  statutes  in  some  of  the  States  which  ex- 
pressly confer  upon  a  board  of  canvassing  oificers  the  power 
to  revise  the  returns  of  an  election,  to  take  proofs,  and  in 
their  discretion  to  reject  such  votes  as  they  deem  illegal. 
Such  a  statute  exists  in  Texas,'  in  Alabama,*  [in  West  Vir- 
ginia *],  and  in  Louisiana  and  in  Florida.  Although  this  is  an 
extraordinary  and  a  dangerous  power  when  placed  in  the 
hands  of  a  board  of  this  character,  with  such  inadequate 
facilities  for  obtaining  legal  evidence  and  deciding  upon 
questions  of  fraud,  yet  it  seems  that  such  statutes  are  not 
unconstitutional.  And  it  has  been  held  by  the  House  of 
Kepresentatives  of  the  United  States  that  the  action  of  such 
a  board,  in  pursuance  of  the  power  thus  conferred,  is  prima 
facie  correct  and  to  be  allowed  to  stand  until  shown  by  evi- 
dence to  be  illegal  or  unjust.' 

§  267.  A  canvassing  board  having  once  counted  the  votes, 
and  declared  the  result  according  to  law,  has  no  power 
or  authority  to  mike  a  recount.  When  this  duty  is  once 
fully  performed,  it  is  performed  once  and  forever,  and  can- 
not be  repeated.'^    In  Bowen  v.  Hixon  the  Court  say,  "  To 

1  [State  V.  Calvert,  98  N.  C,  580.] 

» [State  V.  Boone,  98  N.  C,  573.] 

8  See  Giddings  v.  Clark,  42d  Congress. 

*  See  Norris  v.  Handley,  Id. 

*  [Smith  V.  Jackson,  Row.,  9.] 
^  See  cases  last  above  cited. 

7 Bowen  v.  Hixon,  45  Mo.,  340;  Gooding  v.  Wilson,  43d  Congresa  [But 
see  Roemer  v.  Board  of  City  Canvassers  of  Detroit,  90  Mich.,  27;  McKin- 
ney  v.  Peers,  91  Va.,  684.  The  same  rule  applies  to  the  duties  of  return- 
ing officers.  It  has  been  decided  in  New  York  that  where  inspectors  of 
election  returned  two  statements  at  different  times,  the  second  show- 
ing a  different  result  from  the  first,  that  the  inspectors  had  no  power 


202  ELECTIONS.  [OHAP.  Vm. 

suppose  that  it  could  be  renewed  —  that  the  canvass  of  one 
day  could  be  repeated  the  next,  and  counter  certificates  be 
issued  to  different  contestants  as  new  light  or  influence  was 
brought  to  bear  upon  the  mind  of  the  clerk  —  would  render 
the  whole  proceeding  a  farce."  And  in  Gooding  v.  Wilson 
the  report  of  the  committee  has  this  language: 

"  On  examination  of  precedents  it  does  not  appear  that 
this  House  favors  the  setting  aside  of  oflBcial  and  formal 
counts,  made  with  all  the  safeguards  required  by  law,  on 
evidence  only  of  subsequent  informal  and  unofficial  counts, 
without  such  safeguards.  !N"o  instance  was  cited  at  the  hear- 
ing where  the  person  entitled  by  the  official  count  was  de- 
prived of  his  seat  by  a  subsequent  unofficial  count.  On 
principle  it  would  seem  that  if  such  a  thing  were,  in  the  ab- 
sence of  fraud  in  the  official  count,  in  any  case  admissible,  it 
should  be  permitted  only  when  the  ballot-boxes  had  been  so 
kept  as  to  be  conclusive  of  the  identity  of  the  ballots,  and 
when  the  subsequent  count  was  made  with  safeguards  equiva- 
lent to  those  provided  by  law.  In  the  absence  of  either  of 
these  conditions,  the  proof,  as  mere  matter  of  fact  and  with- 
out reference  to  statutory  rules,  would  be  less  reliable  and 
therefore  insufficient."  ^ 

§  268.  In  Minnesota  it  has  been  held,  in  accordance  with 
the  principle  just  stated,  that  if  the  boar^of  canvassers,  after 
canvassing  the  votes,  adjourn  without  day,  their  power  in 
the  premises  is  at  an  end,  and  they  cannot  reassemble ;  neither 
can  a  court  by  mandamus  compel  them  to  reassemble,  or  give 
them  any  power  in  case  of  their  so  doing.^ 

or  jurisdiction  to  change  their  first  statement,  and  that  the  second  was 
wholly  invalid.    People  v.  Albany  Co.  Canvassers,  46  Hun,  390]. 

1  And  see,  also,  Hadley  v.  City  of  Albany,  33  N.  Y.,  603;  Hartt  v.  Har- 
vey, 33  Barb.,  55;  Ramsay  v.  Calaway,  15  La.  Ann.,  464;  Chrisman  v. 
Anderson,  1  Bart.,  328;  State  v.  Dunne  worth,  21  Ohio,  316.  And  it  i& 
clear  that  canvassing  or  returning  officers  have  no  authority  after 
the  canvass  is  closed  to  recount  the  ballots.  Blane  v.  People,  4  Neb., 
509. 

2  Clark  V.  Buchanan,  2  Minn.,  346;  \In  re  Board  of  Canvassers,  12  N.  Y. 
Sup.,  174;  Rice  v.  Board  of  Canvassers,  50  Kan.,  149;  Rosenthal  v.  Stat© 
Board  of  Canvassers,  50  Ean.,  129]. 


CHAP.  VIII.]  OFFICERS.  203 

The  same  doctrine  was  strongly  asserted  in  State  v.  Durv- 
neworth^  where  it  was  held  that  the  officers  of  an  election 
board  after  its  regular  dissolution  aiXQ  functus  officio,  and 
their  subsequent  acts  in  that  character  unauthorized ;  and 
that  where  a  municipal  election  board  had  regularly  dissolved 
and  the  box  in  which  the  canvassed  ballots  were  placed  had 
remained  five  days  in  an  exposed  place  of  easy  access,  a  sub- 
sequent tally -sheet  made  on  the  fifth  day  on  recount  of  bal- 
lots then  found  in  the  box,  by  four  officers  of  the  municipal- 
ity, some  of  whom  were  members  of  the  election  board,  will 
not  be  received  to  impeach  the  original  canvass  and  tally- 
sheet. 

§  269.  Although  it  is  true,  as  a  general  rule,  that  an  elec- 
tion board,  having  completed  its  duties  and  dissolved,  is 
fvm,ctus  officio  and  can  perform  no  official  acts  thereafter,  yet 
there  may  be  cases  where  such  a  board  has  improperly  ad- 
journed without  performing  its  duties,  in  which  the  courts 
may  by  mandamus  compel  it  to  reassemble  and  complete  its 
work  according  to  law.^  Thus,  it  has  been  held  by  the 
Supreme  Court  of  Kansas  that  where  a  board  of  canvassing 
officers  has  adjourned  after  making  only  a  partial  canvass  of 
the  votes  cast,  mandamus  will  lie  to  compel  them  to  reas- 
semble and  complete  the  canvass.'  Upon  this  question  the 
authorities  are  not  uniform.  In  New  York  *  and  Ohio'  there 
are  decisions  holding  to  some  extent  the  contrary  doctrine. 
But  the  ruling  in  the  Kansas  case  is  supported  by  the  Iowa 
decisions.'  And  we  think  the  reasoning  of  the  Supreme 
Court  of  Kansas  is  sound.  The  Court,  by  Brewer,  Judge, 
said: 

121  Ohio,  216. 

2  [State  V.  Board  of  Canvassers  of  Choteau  Ca,  13  Mont,  23;  Steele  v. 
Meade  (Ky.),  33  S.  W.  Rep.,  944] 

3  Lewis  V.  Commissioners,  16  Kan.,  102. 

*  [People  V.  Reardon,  49  Hun,  425;]  People  v.  Supervisors,  13  Barb., 
217. 
»  State  V.  Berry,  14  Ohio  St.,  315. 
estate  v.  County  Judge,  7  la,,  186;  State  «.  Bailey,  Id.,  39a 


204  KLEonoNS.  [chap.  vm. 

«  The  view  taken  by  the  Iowa  Court  seems  to  ns  the  cor- 
rect one.  It  is  the  duty  of  the  canvassers  to  canvass  all  the 
returns,  and  they  as  truly  fail  to  discharge  this  duty  by  can- 
vassing only  a  part,  and  refusing  to  canvass  the  others,  as 
by  refusing  to  canvass  any.  And  it  is  settled  by  abundant 
authority,  that  where  the  board  refuses  to  canvass  any  of  the 
votes  it  may  be  compelled  to  do  so  by  mandamus,  and  this 
though  the  board  has  adjourned  sine  die}  Hagertg  v.  Ar- 
nold^ is  a  case  in  point.  The  canvass  is  a  ministerial  act, 
and  part  performance  is  no  more  a  discharge  of  the  duty  en- 
joined than  no  performance.  And  a  candidate  has  as  much 
right  to  insist  upon  a  canvass  of  all  the  returns  as  he  has  of 
any  part,  and  may  be  prejudiced  as  much  by  a  partial  as  by 
a  total  failure.  The  adjournment  of  the  board  does  not  de- 
prive the  court  of  the  power  to  compel  it  to  act,  any  more 
than  the  adjournment  of  a  term  of  the  district  court  would 
prevent  this  court  from  compelling  by  mandamus  the  sign- 
ing of  a  bill  of  exceptions  by  the  judge  of  that  court,  which 
lad  been  tendered  to  him  before  the  adjournment.  As  a 
general  rule,  when  a  duty  is  at  the  proper  time  asked  to  be 
done,  and  improperly  refused  to  be  done,  the  right  to  compel 
it  to  be  done  is  fixed,  and  is  not  destroyed  by  the  lapse  of 
che  time  within  which  in  the  first  place  the  duty  ought  to 
have  been  done." 

§  270.  A  very  similar  rule  was  laid  down  by  the  Supreme 
Court  of  Missouri  in  State  v.  Berg^  where  it  appeared  that 
the  board  of  canvassers  of  election  returns  had  completed 
the  canvass  and  made  up  an  abstract  of  the  votes  before  the 
expiration  of  the  time  limited  by  law  for  the  performance  of 
those  duties,  but  the  abstract  was  still  in  the  possession  of  a 
member  of  the  board  when  the  mandamus  proceedings  were 
instituted  and  when  the  alternative  writ  was  served  requir- 
ing them  to  count  certain  votes  which  they  had  illegally 
rejected.     It  was  held  that  the  writ  was  properly  issued  and 

1  [State  V.  Trimbell,  12  Wash.,  440.] 
» 13  Kan.,  367. 
S76Mo.,  13& 


CHAP.  Vm.l  OTTICEB8.  805 

that  the  board  could  be  required  to  obey  its  mandate  although 
it  had  finally  adjourned  prior  to  the  service  of  the  writ.* 

§  271.  By  a  statute  of  Massachusetts  "  the  Mayor  and 
Aldermen  and  Clerk  of  each  city  "  are  required  forthwith 
after  an  election  to  examine  the  returns  from  each  ward,  and 
if  any  error  appears  therein,  "  they  shall  forthwith  notify  " 
the  ward  ofiicers,  "  who  shall  forthwith  make  a  new  and  ad- 
ditional return  under  oath  in  conformity  to  truth."  It  is 
manifest,  however,  that  it  was  not  intended  by  this  statute  to 
authorize  an  amended  return,  unless  made  "  forthwith,"  and 
before  the  ballots,  records,  and  election  papers  have  passed 
out  of  the  hands  of  the  returning  officers.  These  amended 
returns  are  required  by  the  statute  to  be  "  received  by  the 
Mayor  and  Aldermen  and  City  Clerk,  at  any  time  before  the 
expiration  of  the  day  preceding  that  on  which  they  are  re- 
quired by  law  to  make  their  returns  or  declare  the  result  of 
the  election  in  said  city."  They  can  not  be  made  after  the 
result  is  declared,  and  their  value  must  depend  upon  their 
being  made  by  the  returning  officers,  without  delay.* 

§  2T2.  A  statute  of  Kentucky  in  force  in  1833,  required 
the  certificate  of  election  of  representatives  in  Congress,  to 
be  signed  by  all  the  sheriffs  of  the  counties  composing  the 
district.  In  the  case  of  Letcher  v.  Moore,^  the  credentials 
presented  were  signed  by  the  sheriffs  of  four  out  of  five  of 
the  counties  in  the  district,  and  the  question  whether  this 
was  sufficient  to  give  the  holder  of  it  the  right  to  the  seat 
prima  facie^  was  debated  in  the  House  at  great  length,  but 
was  not  decided,  because,  pending  its  discussion,  both  parties 
agreed  to  waive  their  claim  to  a  seat  until  the  case  could  be 
heard  upon  the  merits.  It  would  seem  that  the  vote  of  one 
county  was  not  canvassed  at  all  by  the  sheriffs,  it  having 

*  And  see  State  v.  Trigg,  72  Mo.,  365 ;  State  v.  Commissioners,  23  Kan., 
264;  Kislert).  Cameron,  39  Ind.,  488;  Clark  «.  McKenzie,  7  Bush  (Ky.), 
523 ;  Dew  v.  Sweet  Springs  District  Court,  3  Hen.  «fe  Mun.,  1 ;  Elisha 
Strong,  Petitioner,  20  Pick.,  484 

'  Sleeper  v.  Rice,  1  Bart.,  472;  See  Opinion  of  Justices,  117  Mass.,  599. 

»C1.  &H.,715. 


206  ELECTIONS.  [chap.  VHI. 

been  withheld  by  the  sheriff  having  it  in  charge,  without  any 
sufficient  cause,  and  it  is  evident  that  the  House  had  good 
reasons  to  believe  that  the  vote  of  that  county,  if  it  had  been 
canvassed  by  the  board  of  sheriffs,  would  have  changed  the 
result  and  given  the  credentials  to  Letcher,  instead  of  Moore. 
Under  such  circumstances,  the  House  hesitated,  and  very 
properly,  to  accept  the  certificate  of  a  majority  of  the  sher- 
iffs, based  upon  a  canvass  of  but  four  of  the  five  counties  of 
the  district.  The  case  did  not  come  properly  within  the  rule 
that  the  certificate  of  the  majority  of  the  board,  is  the  cer- 
tificate of  the  board,  for  while  it  is  true,  ordinarily,  that 
less  than  the  whole  number  may  make  a  valid  certificate  in 
such  a  case,  it  must  he  upon  a  canvass  of  the  whole  vote  of 
the  district.  If  a  part  of  the  vote  is  omitted  and  the  certi- 
ficate does  no  more  than  to  show  that  a  canvass  of  part  of 
the  vote  cast  shows  the  election  of  a  particular  person,  it  is 
not  even  prima  facie  evidence,  because  non  constat  that  & 
canvass  of  the  whole  vote  would  produce  the  same  result. 

§  273.  The  act  of  Congress  of  May  31, 1870 '  [since  repealed], 
provided  for  the  punishment  of  "  any  officer  of  election  "  who 
shall  "  fraudulently  make  any  false  certificate  of  the  result  of 
any  election  in  regard  to  a  representative"  in  Congress.  In 
the  case  of  United  States  v.  Clayton^  in  the  Circuit  Court  of 
the  United  States  for  District  of  Arkansas,  the  question  arose 
whether  the  governor  of  a  State  was  liable  to  indictment  and 
punishment  under  this  act.  By  the  statute  of  Arkansas  it 
was  the  duty  of  the  governor  to  grant  a  certificate  to  the 
person  duly  elected  representative  in  Congress,  and  the 
indictment  in  this  case  charged  the  defendant,  as  Governor 
of  Arkansas,  with  having  falsely  and  fraudulently  issued  a 
certificate  declaring  John  Edwards  elected  Representative  in 
Congress  in  the  Forty-second  Congress,  from  the  third  district 
of  that  State,  when  in  truth  and  in  fact  the  returns  then  on  file 
in  his  office  showed  that  one  Thomas  Boles  was  duly  elected. 

» 13  Stat  at  Large,  145,  Sec.  22.    [Sec  5515  Rev.  Stat] 
«  Am.  Law  Reg.  Vol.  10,  737-739;  S.  C,  2  Dill.,  219. 


CHAP.  Vin.j  0FFICEIL9.  207 

A  demurrer  was  interposed  which  raised  the  question 
above  suggested,  and  it  was  sustained,  the  Court  (Dillon  J.) 
being  of  the  opinion  that  the  governor  of  a  State  is  not  an 
"  officer  of  election  "  within  the  meaning  of  the  said  act  of 
Congress.  It  was  deemed  by  the  Court  highly  improbable 
that  Congress  would  (even  if  its  power  to  do  so  be  conceded,) 
provide  for  the  trial  and  imprisonment  of  the  governor  of  a 
State  for  omitting  or  fraudulently  performing,  duties  imposed 
upon  him  by  State  laws. 

§  2Y4.  The  doctrine  that  the  acts  of  an  officer  of  election, 
within  the  scope  of  his  authority,  are  presumed  to  be  correct, 
is  strongly  stated  and  ably  argued  in  Littell  v.  Rohins.'^ 
The  rule  is  here  placed  upon  two  grounds,  viz.:  firat^  that 
the  presumption  is  always  against  the  commission  of  a 
fraudulent  or  illegal  act;  and,  secondly^  that  the  presumption 
is  always  in  favor  of  the  official  acts  of  a  sworn  officer.^. 

In  accordance  with  this  rule  it  has  been  held  that  where 
the  law  allows  the  officers  of  the  election,  upon  the  happen- 
ing of  certain  contingencies,  to  adjourn  the  election  for  one 
or  more  days;  and  if  it  be  shown  that  they  did  in  fact  so 
adjourn  the  election,  it  will  be  presumed  that  the  adjourn- 
ment was  proper;  and  so  if  the  law  empowers  a  board  of 
returning  officers  to  revise  the  returns,  and  it  appears  that 
they  have  exercised  such  authority,  their  action  must  as  we 
have  seen,  stand  until  shown  to  have  been  wrong. 

In  GogginY.  Gilmer,^  it  was  further  held,  and  very  prop- 
erly, that  were  the  officers  of  the  election  were  authorized  in 
case  of  inclement  weather,  the  rise  of  water  courses  by  rain;  or 
the  assembling  of  a  body  of  voters  too  great  to  be  accommo- 
dated in  one  day,  to  adjourn  the  election  for  not  more  than 
three  days, — and  where  there  was  such  an  adjournment, 
even  if  the  officers  were  mistaken  as  to  the  happening  of  any 
of  these  contingencies,  the  election  should  not  be  declared 
illegal  and  void  in  the  absence  of  fraud.     The  officers  of  the 

>  1  Bart.,  138. 

2[Thobe  V.  Carlisle,  Mob.,  323;  Lowe  v.  Wheeler,  2  Ells.,  61.] 

»1  Bart.,  70. 


208  ELECTIONS.  [OKAP.  Vin. 

election  in  such  a  case  are  the  judges  of  the  necessity  for  an 
adjournment,  and  their  decision  upon  that  point,  in  the 
absence  of  fraud  is  final.  The  power  of  adjournment  in  such 
cases  is  discretionary  with  the  officers  of  election,  and  an 
honest  error  in  its  exercise  is  not  fatal  to  the  election. 

§  275.  This  is  unquestionably  the  sound  doctrine,  not- 
withstanding a  contrary  decision  in  one  of  the  earlier  cases, 
from  the  same  State.  ^  In  this  latter  case  the  committee 
went  into  inquiry  as  to  whether  in  point  of  fact  the  contin- 
gency did  or  did  not  happen  on  which  rested  the  authority 
of  the  sheriff  to  adjourn  the  election,  and  finding  that  in 
their  opinion  it  did  not  happen,  they  ruled  that  the  adjourn- 
ment was  illegal  and  rendered  the  subsequent  proceedings 
illegal.  The  case,  however,  did  not  turn  upon  this  question, 
and  for  this  reason,  perhaps,  it  was  not  more  carefully  con- 
sidered. A  similar  question  arose  in  the  case  of  Trigg  v. 
Preston,^  and  it  was  there  held  that  an  adjournment  of  an 
election  by  the  sheriff  under  a  statute  giving  him  discre- 
tionary power  to  adjourn  in  case  of  rain,  was  presumed  to 
be  a  valid  adjournment. 

§  276<.  If  the  officers  conducting  an  election  adopt  and 
enforce  an  erroneous  rule  as  to  the  qualification  of  voters, 
which  prevents  certain  legal  voters,  who  offer  to  vote,  from 
giving  in  their  votes,  and  being  made  known,  prevents  other 
legal  voters  similarly  situated  from  offering  to  vote,  the 
election  may  be  set  aside,  especially  if  it  appear  that  such 
votes  if  offered  and  received  would  have  changed,  or  rend- 
ered doubtful,  the  result.*  After  a  decision  has  been  made 
by  the  election  officers  affecting  the  right  of  a  class  of 
persons  to  vote,  and  that  decision  becomes  known,  it  is  not 
necessary  that  every  voter  belonging  to  such  class  should 
offer  his   vote  and  have  it  formally  rejected.*     Kor  is  it 

« Bassett  v.  Bayley,  CI.  &  H.,  254 

»  CI.  &  H.,  78. 

■  Scranton  Borough  Election,  Bright  Elec.  Cas.,  4591 

*§23o. 


CHAP.  VIII.]  OFFICERS.  209 

necessary  to  prove  in  such  a  case  how  each  person  whose 
vote  was  excluded  would  have  voted,  if  permission  had  been 
given;  to  require  this,  would  be  to  take  away  the  secrecy  of 
the  ballot.  1 

Where  a  class  of  persons  are  unlawfully  excluded  from  the 
right  to  vote  by  the  regular  election  officers,  they  have  no 
right  to  organize  independent  or  outside  polls  and  cast  their 
ballots  thereat  and  have  them  counted.  Their  remedy  is  to 
proceed  to  contest  the  validity  or  result  of  the  election ;  and 
they  can,  if  they  choose,  institute  proper  proceedings  against 
the  election  officers.  * 

§  2^%.  Where  an  election  district  is,  by  the  enactment  of  a 
law,  divided  in  to  two  separate  districts,  with  two  separate 
places  of  holding  an  election,  the  functions  of  the  election  offi- 
cers of  the  old  district  are  destroyed,  and  they  can  not  act  in 
either  of  the  new  districts  into  which  the  old  one  is  divided. 
It  would  be  otherwise  if  part  of  an  old  district  was  formed  into 
a  new  one,  and  if  provision  was  only  made  for  the  new  one. 
That  would  not  annihilate  the  old  district,  but  only  change  its 
boundaries.  The  forming  of  one  old  district  into  two  com- 
plete new  ones,  does  annihilate  the  old,  and  it  is  well  settled, 
that  the  official  functions  of  local  officers  fall  with  the  politi- 
cal annihilation  of  the  locality  for  which  they  were  chosen  or 
appointed.* 

§  2T8..  The  law  is  well  settled  that  statute  certifying  offi- 
cers can  only  make  their  certificates  evidence  of  the  facts 
which  the  statute  requires  them  to  certify,  and  when  they 
undertake  to  go  beyond  this,  and  certify  other  facts,  they  are 
unofficial,  and  no  more  evidence  than  the  statement  of  any 
unofficial  person.^  This  rule  of  course  applies  to  election 
returns,  and  to  all  certificates  which  are  by  law  required  to 

»  See  §  488  et  seq. 

*  Gauze  «.  Hodges,  Contested  Election  Cases  in  Congress,  1871  to  1876, 
page  89 ;  Ward  ®.  Sykes,  61  Miss.  649. 

•Penn.  Dist.  Election  Case,  Bright.  Elec.  Cas.,  617;  North  Whitehall 
«.  South  Whitehall,  3  S.  &  R,  116. 

*  Switzler  «.  Anderson,  3  Bart.,  874;  State  v.  Berg,  76  Mo.,  176. 

14 


210  ELECTIONS.  [chap.  Yin. 

be  made  by  oflBcers  of  election,  or  of  registration,  or  by  re- 
turning officers.  They  can  only  certify  to  such  facts  as  the 
law  requires  them  to  certify.  The  certificate  of  such  an 
officer  is  not,  however,  vitiated  by  the  fact  that  it  contains 
the  certification  of  facts  outside  of  those  which  the  officer 
has  a  right  to  certify.  If  it  in  fact  certifies  the  proper  facts 
it  is  good,  and  the  remainder  of  the  certificate  is  to  be  re- 
jected as  surplusage. 

§  279.  The  inspectors  of  an  election  having  received  the 
vote  of  a  person,  and  deposited  the  same  in  the  box,  can  not 
afterwards  enter  into  any  inquiry  as  to  the  right  of  such 
person  to  vote.  There  are  two  sufficient  reasons  for  this 
rule.  In  the  first  place,  the  voter  is  a  necessary  party  to  any 
such  investigation,  and  in  the  second  place,  the  inspectors 
can  not  be  presumed  to  know  how  any  person  voted,  and, 
therefore,  can  not  know  which  ballot  to  exclude.  The  rule 
is,  therefore,  that  the  moment  the  ballot  is  deposited,  all  con- 
trol over  it,  and  all  power  to  inquire  as  to  its  legality,  by  the 
officers  of  the  election,  is  ended.  * 

§  250.  A  statute  of  New  Hampshire  required  the  town 
clerk  to  record  the  vote  for  representative  in  Congress,  as 
counted  and  announced  in  his  presence  by  the  selectmen,  and 
to  send  a  copy  thereof  to  the  Secretary  of  State.  The  statute 
further  provided  as  follows:  "If  the  clerk  of  any  town  shall 
make  an  incorrect  or  insufficient  record  or  return  of  the  votes 
given  therein,  at  any  meeting  for  any  officer,  the  tribunal  by 
whom  said  votes  are  opened  and  corrected  may  require  said 
clerk,  at  his  own  expense,  to  come  in  and  amend  said  record 
or  return,  according  to  the  facts  of  the  case." 

It  was  held  by  the  Supreme  Court  of  that  State  that  this 
statute  only  authorizes  town  clerks  when  required,  to  make 

*  Hartt  V.  Harvey,  32  Barbour,  55.  Inspectors  of  election  have  no 
authority,  on  the  assertion  of  one  who  claims  to  have  voted  by  mistake 
In  the  wrong  precinct,  to  withdraw  from  the  ballot  box  and  destroy  a 
ballot  which  he  identifies  as  the  one  or  similar  to  the  one  he  had  voted. 
Harbaugh  •.  Cicot,  33  Mich.,  241.    See  also  §§  230-234 


CHAP.  VIII.]  OFFICEES.  Mt 

their  record  to  correspond  with  the  declaration  of  the  vote 
as  publicly  made  bj  the  moderator,  and  does  not  authorize 
them  to  make  by  amendment  a  record  which  they  could  not 
have  made  in  the  first  instance,  i 

§  2'81.  Where  the  law  requires  that  the  polls  shall  be 
kept  open  until  sunset,  this  is  probably  equivalent  to  de- 
claring that  they  shall  be  closed  at  sunset,  though  upon  this 
point  the  committee  in  Hogan  v.  Pile^^  refrained  from  ex- 
pressing an  opinion.  It  was,  however,  held  in  that  case  that 
the  polls  having  been  regularly  closed  at  sunset,  they  could 
not  be  legally  opened  again  during  the  evening;  and  there 
is  no  doubt  but  that  if  the  polls  are  once  regularly  closed, 
the  officers  of  the  election  can  not  again  open  them.  It  is 
to  be  presumed  that  all  voters  who  have  not  voted  will  have 
notice  of  the  closing  of  the  polls;  that  being  a  proceeding 
according  to  law  they  are  bound  to  know  it,  and  act  upon  it; 
but  the  re-opening  is  a  proceeding  of  which  no  one  will  be 
bound  to  take  notice,  and  if  some  do  take  notice  of  it,  and 
deposit  ballots,  they  are  void  as  being  both  unlawful  and  a 
fraud  upon  the  rights  of  other  voters. 

§  282.  In  general,  where  a  statute  requires  an  official  act 
to  be  done  by  a  given  day,  for  a  public  purpose,  it  must  be 
construed  as  merely  directory  in  regard  to  the  time.  Ac- 
cordingly, it  is  uniformly  held  that  a  statute  requiring  an 
officer  or  board  to  certify  the  result  of  an  election,  or  in  any 
way  to  make  known  the  result,  or  to  issue  a  commission  on 
or  before  a  given  day,  or  within  a  given  number  of  days  after 
the  election,  is  directory  and  not  mandatory.  Such  acts  are 
valid  though  performed  after  the  expiration  of  the  time.* 

This  doctrine  has  been  uniformly  maintained  by  the  courts, 
and  nothing  is  better  settled.  ■* 

»  Opinion  of  the  Justices,  58  N.  H.,  640. 
«  2  Bart.,  281. 

•  Ex  parte  Heath,  3  Hill,  4i. 

*  People  v.  Allen,  6  Wend.,  486,  and  cases  there  cited;  Colt  «.  Eves,  13 
Conn.,  242,  253-255,  and  cases  cited. 


212  ELECTIONS.  [chap.  vin. 

§  283.  Likewise  statutes  directing  the  mode  and  manner 
in  which  the  officers  of  an  election  shall  proceed  in  the  con- 
duct thereof  are,  as  shown  elsewhere,  generally  to  be  re- 
garded as  directory  unless  the  contrary  plainly  appears  upon 
the  face  of  the  statute.^  It  has  accordingly  been  held  that  the 
fact  that  the  officers  of  an  election  caused  the  names  on  the 
registration  list  to  be  copied  and  arranged  alphabetically,  so 
that  the  names  might  be  more  readily  found  as  the  voters 
presented  themselves  to  vote,  and  that  they  used  this  alpha- 
betical copy  in  connection  with  the  original,  will  not  affect 
the  validity  of  the  poll.'^ 

§  284.  "When  the  law  designates  a  place  for  holding  an 
election  for  a  given  precinct,  and  provides  a  set  of  officers  to 
conduct  the  same,  and  makes  no  provision  for  more  than  one 
voting  place  or  ballot-box  within  such  precinct,  it  has  been 
held  that  it  is  not  lawful  for  the  officers  of  election  to  pro- 
vide two  or  more  ballot-boxes  at  different  places  within 
such  precincts.'  It  is  plain  that  the  power  to  multiply  vot- 
ing places  would  be  an  exceedingly  dangerous  power,  and 
one  which  might  be  used  for  purposes  of  corruption  and 
fraud.* 

§  285.  In  the  case  last  cited  one  of  the  grounds  of  con- 
test was,  that  the  county  court  being  authorized  to  fix  the 
places  of  voting,  and  arrange  the  voting  precincts,  had  per- 
formed this  duty  so  unfairly  and  improperly  as  to  prevent 
a  full  vote  for  contestant.  Upon  this  point  the  committee 
say: 

"  The  Legislature  had  the  power  to  fix  the  voting  districts 
or  provide  by  law  that  the  county  court  should  do  so,  and 

i§§  225-228;  [Smith  v.  Jackson,  Row.,  9.  A  statutory  provision  re- 
quiring the  result  of  a  vote  to  remove  a  county  seat  to  be  certified  sep- 
arately  from  the  vote  upon  other  matters  submitted  at  the  same  elec- 
tion is  mandatory.    Welch  v.  Wetzel,  29  W.  Va.,  63]. 

2Hogan  V.  Pile,  2  Bart,  281. 

>  [Contra,  Bowers  v.  Smith,  111  Mo.,  45.] 

*  Sloan  V.  Rawles,  43d  Congress;  [Smith  v.  Shelley,  2  Ells.,  18]. 


CHAP.  VIII.]  OFFICEES.  213 

the  law  of  Missouri  having  imposed  upon  the  county  court 
the  duty  of  establishing  voting  places,  that  court  had  the 
right  to  fix  the  number  in  its  own  discretion,  and  the  exer- 
cise of  that  diseretion  can  not  be  reviewed.  If,  indeed,  the 
court  should  fraudulently  refuse  to  establish  voting  places, 
in  such  a  manner  as  to  disfranchise  the  citizens  for  partisan 
purposes,  it  might  be  necessary  to  set  aside  the  entire  elec- 
tion." 

No  doubt  the  true  rule  is  here  indicated,  and  it  is  this. 
If  the  board  or  officer  having  the  power  to  fix  the  voting 
places,  shall  fraudulently  so  arrange  them  as  to  disfran- 
chise a  portion  of  the  voters,  and  thus  defeat  the  will  of  the 
electors,  it  would  become  necessary  to  set  aside  the  election. 
If  the  fraudulent  purpose  must,  in  such  a  case,  be  proven,  it 
may  be  established  by  circumstances. 

§  286.  But  the  question  may  arise  whether,  even  in  the 
absence  of  proof  of  a  fraudulent  purpose,  the  fixing  of  the 
voting  places  in  such  a  manner  as  to  prevent  a  full  and  free 
election,  must  not  render  the  election  void?  As  for  exam- 
ple, if  all  the  voters  of  a  county  or  city  are  required  to  vote 
at  a  single  polling  place,  and  if  it  should  appear  that  the 
voters  were  so  numerous  that  it  was  impossible  for  them  all 
to  vote,  and  that  a  part  were  in  fact,  for  this  reason,  pre- 
vented from  voting,  in  such  a  case,  we  think,  the  election 
should  be  held  void  without  further  proof.  Perhaps,  from 
these  facts,  a  fraudulent  purpose  on  the  part  of  the  board  or 
officers,  whose  duty  it  was  to  fix  suitable  and  convenient 
voting  places,  would  be  presumed ;  but  if  not,  then  the  elec- 
tion should  be  held  void,  upon  the  ground,  that  whatever  in 
point  of  fact  prevents  a  fair  and  free  election,  whether  so  in- 
tended or  not,  must  render  the  election  null  and  void.^  A 
different  question  would  arise  in  cases  where  the  legislature 
by  statute  has  fixed  the  places  of  voting,  and  where  no  other 

1  [State  V.  Harwood,  36  Kaa,  236.] 


214  ELECTIONS.  [chap.  VIII. 

authority  has  power  to  alter  or  change  them.  Probably  it 
would  not  be  competent  to  show  that  in  the  exercise  of  this 
power  the  legislature  has  been  actuated  by  improper  motives. 
The  only  question  which  could  arise  would  be  as  to  the  con- 
stitutionality of  the  legislation,  and  it  would  be  necessary  to 
show  that  the  statute  was  of  such  a  character  as  to  impair 
the  constitutional  rights  of  the  electors,  in  order  to  hold  it 
void. 

§  28Y.  If  a  voter,  upon  being  challenged  and  questioned, 
admits  that  he  has  not  been  naturalized,  or,  that  his  natu- 
ralization certificate  was  issued  by  some  court  which  the 
judges  know  had  no  jurisdiction  of  that  subject,  they  may 
well  decline  to  administer  the  oath,  or  to  accept  the  vote. 
But  the  judges  have  no  right,  in  California,  to  require  the 
production  of  the  certificate  of  naturalization,  i  And  a  simi- 
lar rule  prevails  in  most  of  the  States. 

The  true  rule  no  doubt  is,  that  if  the  judges  believe  that 
Ihe  person  offering  to  vote  has  not  been  legally  naturalized, 
they  may,  at  their  peril,  refuse  to  receive  his  ballot  or  to  ad- 
minister the  oath;  but  the  ofier  on  the  part  of  the  person 
desiring  to  vote  to  take  the  prescribed  oath  raises  a  pre- 
sumption that  he  is  a  legal  voter,  and  if  the  oflSeers  of  elec- 
tion refuse  his  vote  notwithstanding  such  offer,  it  would 
probably  be  held,  in  a  proceeding  against  them  for  such  re- 
fusal, that  they  must  show  afllrmatively  that  such  person  was 
not  entitled  to  vote.^ 

i  People  V.  Gordon,  5  CaL,  335. 

*  [People  V.  Burns,  75  Cal.,  627.  It  has  been  held  by  the  Court  of  Ap- 
peals of  New  York  that  under  a  statute  which  provides  that  each 
elector  shall  deliver  his  ballot  to  one  of  the  inspectors  in  presence  of 
the  board;  that  if  challenged  the  inspector  shall  administer  an  oatfi  to 
him  and  ask  him  certain  prescribed  questions;  and  that  if  the  chal- 
lenge shall  not  be  withdrawn  the  inspectors  shall  administer  to  the 
elector  a  general  oath,  in  which  he  states  in  detail  that  he  possesses 
all  the  legal  and  constitutional  requirements;  and  that  if  he  refuse  to 
take  such  oath  his  vote  shall  be  rejected, —  the  inspectors,  being  minis- 


CHAP.  Vni.]  OFFIOEES.  216 

§  288.  A  board  of  commissioners  authorized  by  law  to 
appoint  inspectors  of  elections  before  a  certain  date  cannot 
defeat  the  election  by  failing  or  refusing  to  make  such  ap- 
pointment. Mandamus  will  lie  to  compel  the  appointment 
after  the  time  designated,  which  appointments  when  made 
will  be  as  valid  as  if  made  at  the  proper  time.^ 

terial  officers,  have  no  discretionary  power  to  reject  the  vot«  of  an 
elector  who  has  answered  the  statutory  questions  and  taken  the  pre» 
scribed  oaths,  even  though  he  has  failed  to  satisfy  them  as  to  his  qual- 
ifications.   People  V.  Bell,  119  N.  Y.,  175.] 
1  People  V.  Commissioners,  67  How.  (N.  Y.)  Prac.,  44& 


CHAPTER  IX. 

ELECTION  OFFICERS  — CIVIL  LIABILITY  FOE  MISCONDUCT 

IN  OFFICE. 

§  289.    Wilful  and  corrupt  denial  of  right  of  voteR 
289.    In  what  cases  malice  must  be  shown. 
289,  290.    Rule  in  Massachusetts  and  Ohia 

291.  Rule  in  Pennsylvania. 

292.  Rule  where  duty  is  quasi-judicial 

293.  294.    Honest  mistake  by  registering  officer. 

295-297.    Statutes  prescribing  specific  duties  must  be  obeyed. 
295, 296.    Duty  of  election  board  where  voter  offers  to  take  statutory 
oath. 

297.  What  will  amotint  to  seasonably  placing  voter's  name  upon  the 

list. 

298.  Duty  of  voter  to  furnish  evidence  of  his  right      \ 

298.  Statements  of  voter  as  to  his  place  of  residence  may  be  proven. 

299.  Malice  not  presumed. 

300.  Evidence  that  officers  of  election  knew  that  plaintiff  differed 

from  them  in  his  political  sentiments. 

301.  Exemplary  damages,  when  allowed. 

§  289.  The  general  rule  is  that  an  officer  of  election,  or 
of  registration,  who  shall  wilfully  and  corruptly  refuse  to 
any  citizen  who  is  duly  qualified,  the  right  to  vote,  or  to 
register,  is  liable  in  damages  to  the  person  injured.  In  sev- 
eral of  the  States,  as  we  shall  presently  see,  it  is  regarded  as 
suflBcient  to  show  that  the  plaintiff  has  been  unlawfully  de- 
prived of  his  right,  without  proof  of  a  malicious  or  corrupt 
purpose  on  the  part  of  the  officer,  but  the  general  doctrine 
is  as  above  stated.  In  Massachusetts,  where  it  is  not  neces- 
sary to  show  malice,  it  has  been  held  that  the  officer  is  not 
liable,  if  he  acted  under  a  mistake,  into  which  he  was  led  by 
the  conduct  of  plaintiff.^ 

In  England,  and  in  most  of  the  States  of  the  Union,  the 

1  Humphrey  v.  Kingman,  5  Mete.,  162L 


CHAP.  IX.]  OFFICERS.  217 

rule  above  stated  is  regarded  as  well  settled,  and  no  action  is 
held  to  be  maintainable  against  an  officer  of  election  for  re- 
jecting the  vote  of  a  citizen,  without  proof  that  such  rejec- 
tion was  wilful  and  malicious.  In  Massachusetts,  by  a  series 
of  decisions,  the  law  is  settled  otherwise.*  But  in  the  latter 
case  it  was  held  that  in  order  to  recover,  the  plaintiff  in  such 
an  action  must  allege  and  prove  that  he  furnished  defendants 
with  sufficient  evidence  of  his  having  the  legal  qualifications 
of  a  voter,  before  defendants  refused  to  receive  his  vote. 
This  decision  comes  almost  up  to  the  rule  as  it  exists  in  most 
of  the  other  States,  because  if  the  voter  furnished  sufficient 
evidence  of  his  right,  that  fact  would  go  far  to  prove  wilful- 
ness on  the  part  of  the  officer,  who,  in  the  face  of  such  evi- 
dence, refuses  him  the  privilege  of  voting. 

The  rule  laid  down  in  the  Massachusetts  cases  has  been 
followed  in  Ohio,^  and  also  in  Wisconsin.*  But  the  weight 
of  authority  is  decidedly  the  other  way.*  Even  in  those 
States  where  the  Massachusetts  rule  prevails,  it  is  believed 
that  no  more  than  nominal  damages  is  ever  allowed,  in  the 
absence  of  proof  of  a  corrupt  purpose.  The  action  in  those 
States  is  regarded  rather  as  one  for  the  determination  and 
settlement  of  the  plaintiff's  right  to  vote,  than  as  a  suit  to 
recover  damages.  5  In  Jeffries  y,  Ankeney,  awpra^  the  Su- 
preme Court  of  Ohio  said: 

»Killiam  ©.Ward,  2  Mass.,  236;  Lincoln  «.  Hapgood,  11  Mass.,  350; 
Henshawt).  Foster,  9  Pick,,  312;  Capen  v.  Foster,  12  Pick.,  485;  Blanch- 
ard  V.  Stearns,  5  Mete,  298. 

8  Jeffries  v.  Ankeney,  11  Ohio,  372;  Anderson  v.  Milliken,  9  Ohio  St., 
568. 

»  Gillespie  v.  Palmer,  20  Wis.,  544. 

♦Jenkins  v.  Waldron,  11  Johns.,  114;  Weckerly  «.  Geyer,  11  S.  «&  R, 
35;  Moran  v.  Rennard,  3  Brewst.,  601;  Commonwealth  v.  Sheriff,  1 
Brewst,  183;  State  v.  Smith,  18  N.  H.,  91;  State  v.  Daniels,  44  N.  H., 
383 ;  State  v.  McDonald,  4  Harr.,  555 ;  State  «.  Porter,  Id.,  556 ;  Carter  v 
Harrison,  5  Blackf.,  138;  State  v.  Robb,  17  Ind.,  536;  Peavey  v.  Bobbins, 
3  Jones  (Law),  339;  Caulfield  «.  Bullock,  18  B.  Mon.,  494;  Morgan  v. 
Dudley,  Id.,  693;  Miller  v.  Rucker,  1  Bush.,  135;  Rail  v.  Potts,  8  Humph., 
225;  Bevard  v.  Hoffman,  18  Ind.,  479;  Anderson  «.  Baker,  23  Md.,  531. 

»  Bright.  Elec.  Cas.,  184. 


218  ELECTIONS.  [chap.  IX. 

« It  is  generally  true  that  no  suit  lies  against  an  officer  for 
a  mistake  in  the  exercise  of  his  judicial  discretion;  but  when 
we  reflect  how  highly  the  privilege  of  voting  is  generally 
valued,  and  that  the  legislature  has  provided,  and  the  forma 
of  law  admit,  no  other  remedy  than  this  action,  we  unite  in 
the  opinion  that  a  necessity  exists  for  entertaining  this 
remedy.  In  the  absence  of  malice,  where  the  suit  is  brought 
merely  to  assert  the  right,  the  damages  wiU  be  nominal  and 
Bmall." 

§  290.  And  the  Supreme  Court  of  Massachusetts,  while 
maintaining  the  rule  that  election  officers  are  liable  for  re- 
jecting a  legal  vote  without  proof  of  malice,  seems  to  have 
endeavored  to  so  administer  the  law  under  that  rule  as  to 
take  away  much  of  its  severity.  Thus  in  Lincoln  v.  Haj}- 
good,^  the  Court  said: 

"But,  notwithstanding  we  deem  it  necessary  that  this 
action  should  be  supported  as  the  only  mode  of  ascertaining 
and  enforcing  a  right  which  has  been  disputed,  we  do  not 
think  it  ought  to  be  a  source  of  speculation  to  those  who 
may  be  ready  to  take  advantage  of  any  injury,  and  turn  it 
to  their  profit,  to  the  vexation  and  distress  of  men  who  have 
unfortunately  been  obliged  to  decide  on  a  question  some- 
times intricate  and  complicated,  but  who  have  discovered  no 
disposition  to  abuse  their  power  for  private  purposes.  And 
we,  therefore,  think  that  juries  should  always,  in  estimating 
the  damages,  have  regard  to  the  disposition  and  temper  of 
mind  discoverable  in  the  act  complained  of,  and  probably  the 
Court  would  determine  that  a  sum,  comparatively  not  large, 
would  be  excessive  damages,  in  a  case  where  no  fault  but 
ignorance  or  mistake  was  imputable  to  the  selectmen."  And 
in  Henshaw  v.  Foster ^^  the  same  Court  assessed  a  fine  of 
only  one  dollar  against  an  election  officer  who  had  rejected  a 

1 11  Mass.,  857. 
«  9  Pick.,  8ia. 


CHAP.  IX.]  OFFICEKS.  219 

legal  vote,  but  who  had  done  so  in  the  honest  discharge  of 
his  supposed  duty.* 

§  291.  The  Supreme  Court  of  Pennsylvania,  in  Weckerly 
V.  Geyer^^  laid  down  as  the  law  of  that  State  the  rule  that 
malice  must  be  shown  to  sustain  an  action  on  the  case  against 
an  officer  of  an  election  for  refusing  the  plaintiff's  vote,  and 
enforced  it  as  follows: 

« "We  have  no  doubt  that  malice  is  an  ingredient  without 
which  the  action  can  not  be  supported.  By  malice,  I  mean 
the  refusal  of  a  vote  from  improper  motives  and  contrary  to 
the  inspector's  own  opinion.  It  is  not  necessary  that  this 
should  be  expressly  proved;  the  jury  may  infer  it  from  cir- 
cumstances; direct  and  positive  proof  in  a  case  of  this  kind 
is  hardly  to  be  expected.  But  a  man  who  is  placed  in  public 
station  as  an  officer  of  the  commonwealth,  or  of  a  corpora- 
tion, in  which,  though  not  strictly  a  judicial  office,  he  must 
necessarily  exercise  his  judgment  (such  as  inspector  or  judge 
of  an  election),  is  not  liable  to  an  action,  provided,  he  act 
with  purity  and  good  faith;  but,  that  he  is  responsible  if  he 
act  wilfully  and  maliciously,  was  decided  in  the  English 
House  of  Lords  in  the  case  of  Ashhy  v.  White,^  and  has 
been  held  for  law  ever  since." 

§  SOS..  It  has  been  recently  held  by  the  Supreme  Court 
of  Connecticut  that  a  board  of  registration  clothed  with 
power  to  decide  upon  the  qualifications  of  an  elector,  in  the 
exercise  of  that  power  acts  in  a  quasi  judicial  character,  and 
that  public  policy  demands  that  the  rule  which  exempts  judi- 
cial officers  from  personal  liability  for  mistakes  or  errors  of 
judgment  in  the  exercise  of  their  functions  should  be  applied 

^  The  later  cases  in  Massachusetts  seem  to  establish  the  rule  that  the 
oflBcers  of  election  are  liable  to  an  action  of  tort  brought  by  a  voter  who 
having  produced  proper  and  sufficient  evidence  of  his  qualifications,  has 
nevertheless  been  refused  the  privileges  of  an  elector.  Lombard  v.  Oli- 
ver, 7  Allen,  155 ;  Harris  «.  Whitcombe,  4  Gray,  433 ;  Larned  «.  Wheeler, 
140  Mass.,  390. 

2  11  S.  &  R.,  35. 

» 1  Bro.,  P.  C,  49;  [1  Smith's  Leading  Cases,  472], 


220  ELECTIONS.  [chap.  IX, 

to  snch  boards.!     In    this  case  the  Massachusetts   rule  is 
criticised  and  dissented  from,  the  Court  saying: 

"We  have  no  disposition  to  question  the  validity  or 
strength  of  the  reasoning  in  those  cases,  theoretically  con- 
sidered. It  is  sufficient  to  say  that  with  nearly  seventy 
years'  experience  under  our  Constitution,  it  is  believed  that 
the  evils  apprehended  have  not  existed  to  any  considerable 
extent.  Indeed,  it  is  believed  that  if  the  Massachusetts  rule 
prevailed  here,  the  evils  that  would  arise  from  increased 
litigation,  subjecting  men  who,  it  must  be  presumed, 
endeavor  honestly  and  fairly  to  discharge  their  official  duties, 
to  annoyance  and  expense,  would  be  greater  than  any  we 
have  heretofore  experienced.  Yiewed  in  the  light  of  experi- 
ence, we  can  not  regard  those  reasons  as  sufficient  to  induce 
us  to  depart  from  the  general  rule. 

"  For  two  thirds  of  a  century  our  system  has  been  in 
operation,  and  we  are  not  aware  that  the  records  of  our 
courts  show  any  cases  of  tin's  description.  This  circum- 
stance, though  not  in  itself  a  decisive  argument,  tends 
strongly  to  show  the  almost  universal  sense  of  the  profession 
during  that  time,  that  such  an  action  can  not  be  maintained. 

"As  a  rule  we  think  the  duties  devolving  upon  boards  of 
registration  are  fairly  and  honestly  discharged.  Doubtless 
it  occasionally  happens  that  a  man  entitled  to  vote  is  excluded 
or  one  not  entitled  to  vote  is  admitted;  but  so  far  as  such 
cases  result  from  mistakes  it  is  hard  to  subject  the  members 
of  the  board  to  an  action. 

"We  think  it  not  politic  or  wise  to  expose  those  upon 
whom  the  law  casts  the  burden  of  ascertaining  the  qualifica- 
tions of  electors  to  the  annoyance  of  private  suits  for  errors 
in  judgment.  If  they  act  wantonly  or  maliciously,  there 
may  be  a  private  remedy;  but  that  is  not  this  case,  as  there 
is  no  allegation  of  wanton  or  malicious  conduct. 

"  We  think  that  the  general  rule  which  exempts  judicial 

>  Perry  v,  Reynolds,  53  Conn.,  627;  18  Am.  &  Eng.  Corp.  Ca&,  114 


CHAP.  IX.]  OFFICERS.  J81 

ojQBcers  from  liability  should  continue  to  apply  to  boards  of 
registration,  so  long  as  they  act  in  good  faith  and  within 
their  jurisdiction." 

§  293.  It  has  been  held  in  Missouri  that  registering  offi- 
cers are  not  responsible,  in  damages,  for  refusing  to  register 
an  elector  however  erroneous  their  refusal  may  be,  if  produced 
by  an  honest  mistake  or  error  of  judgment,^ but  if  they  act 
corruptly  or  maliciously,  they  are  liable  to  the  person  in- 
jured.^ 

§  294.  In  the  case  cited  in  support  of  the  preceding 
section  the  doctrine  is  laid  down  by  the  Supreme  Court  of 
Missouri  that  a  judicial  officer  is  in  no  case  to  be  held  liable 
in  damages  for  an  error  of  judgment,  and  where  there  is  no 
malice;  and  this  doctrine  is  supported  by  the  citation  of 
numerous  authorities.  The  Court  further  inquires  whether 
the  officers  of  registration,  under  the  statute  of  Missouri, 
were  judicial  officers,  and  upon  this  point  the  Court  say: 

"Their  duties  were  partly  ministerial  and  partly  judicial; 
that  is,  they  were  required  to  exercise  a  discretion  and  judg- 
ment when  determing  the  qualifications  of  those  presenting 
themselves  for  registration;"  and  while  holding  that  these 
officers  were  not  in  a  strict  sense,  judicial  officers,  the  Court 
yet  held  that  they  were,  like  judges  of  election,  clothed  with 
discretionary  power,  and  acted  quasi  judicially,  and  that  it 
was  therefore  necessary  to  allege  and  prove  that  their  official 
action  was  knowingly  wrongful,  malicious  or  corrupt,  in 
order  to  hold  them  liable  in  damages  therefor. 

§  295.  The  duties  of  election  officers  are  generally 
clearly  defined  by  statute,  particularly  as  to  the  manner  of 
conducting  the  election  and  of  determining  disputed  ques- 
tions as  to  the  right  of  individuals  to  vote.  In  some  of  the 
States  if  the  voter  will  make  an  affidavit,  the  form  or  sub- 

1  [The  same  rule  obtains  in  Washington  and  North  Dakota.  Isaacs 
V.  McNeil,  44  Fed.  Rep.,  32;  Alden  v.  Hinton,  6  N.  D.,  317.] 

2  Pike  V.  Magoun,  44  Mo.,  491. 


222  BLEOnONS.  [chap.  IX. 

stance  of  which  is  prescribed,  his  vote  is  to  be  received 
without  further  evidence  or  inquiry.  Such  is  the  law  of 
Illinois  ;^  and  also  of  j^ew  fork.^ 

It  is  the  policy  of  the  law  upon  this  subject  to  leave  as 
little  as  possible  to  the  discretion  of  election  officers.  In  the 
statutes  of  most,  if  not  of  all,  of  the  States  there  are 
numerous  and  minute  provisions  framed  for  the  purpose  of 
anticipating  questions,  which  may  arise  at  the  polls,  and  the 
manner  of  their  determination.  These  statutes  are  wisely  so 
framed  as  to  prevent  uncertainty  and  debate  as  to  the  proper 
decision  of  questions  arising  amid  the  confusion  and  excite- 
ment of  an  election.  For  example,  the  statute  of  Illinois 
under  which  the  case  of  Spragins  v.  Houghton  arose, 
prescribed  the  form  of  the  oath  to  be  taken  by  a  voter  when 
challenged  and  provided  that  "  if  the  person  so  offiering  his 
vote  shall  take  such  oath  or  affirmation,  his  vote  shall  be 
received,  unless  it  shall  be  proved  by  evidence  satisfactory 
to  a  majority  of  the  judges,  that  such  oath  or  affirmation  is 
false."  And  it  was  held  that  under  this  statute  the  judges 
had  no  discretion ;  they  were  bound  to  receive  the  vote  of  a 
person  who  took  the  oath,  unless  proof  was  offered  to  show 
that  the  oath  was  false.  And  this  construction  of  the  Illinois 
statute  was  doubtless  correct  in  its  application  to  the  case 
decided,  for  it  is  beyond  question  that  if  the  officer  obeys 
such  a  statute  he  can  not  incur  any  of  its  penalties.  But  a 
case  may  arise  where  the  officer  knows,  or  has  reason  to 
believe,  that  notwithstanding  the  oath  taken  by  a  person 
offering  to  vote,  he  is  not  a  legal  voter,  where  in  fact  the 
officer  knows,  or  has  reason  to  believe,  that  the  oath  is  false. 
May  not  the  officer  reject  such  a  vote  notwithstanding  the 
person  offering  it  takes  the  oath,  and  justify  his  act  by  prov- 
ing that  the  oath  was  false?  In  such  a  case,  of  course,  the 
officer  takes  upon  himself  the  burden  and  the  risk  of  proving 
the  oath  of  the  alleged  voter  to  be  false. 

>  Spragins  ».  Houghton,  3  111.,  (2  Scam.)  877 ;  8.  C.  Bright.  Elec.  Cas.,  163. 
'  People  ©.  Pease,  30  Barh.,  588. 


CHAP.  IX.]  OFFICERS.  223 

Thns  in  State  v.  Robh^^  it  was  held  that  the  election 
board,  whose  duty  it  was  to  decide  upon  the  qualifications  of 
voters,  may  refuse  the  vote  of  a  person  who  takes  or  offers 
to  take  the  oath  prescribed  by  law  as  to  his  qualifications, 
but  they  do  so  at  the  peril  of  being  able  to  show  that  he  was 
not  a  legal  voter,  upon  a  prosecution  for  refusing  the  vote. 
It  was  further  held,  however,  that  when  the  person  offering 
to  vote  takes  the  prescribed  oath,  the  board  are  justified  in 
receiving  the  vote,  unless  it  can  be  shown  that  they  acted 
corruptly,  and  were  cognizant  of  the  fact  that  he  was  not  a 
legal  voter.  The  doctrine  of  this  case  seems  to  be  that  if 
the  board  know  that  the  voter  swears,  or  offers  to  swear 
falsely,  and  that  he  is  not  entitled  to  vote,  it  is  not  only  their 
right,  but  their  duty  to  refuse  the  vote,  notwithstanding  such 
offer  to  swear.-  The  statute  of  Indiana,  under  which  this 
case  arose,  unlike  that  of  Illinois,  sujpra,  was  intended  to, 
and  did  preclude  the  election  board  from  taking  testimony 
relative  to  the  right  of  any  person  to  vote  who  might  offer 
to  take  the  oath  therein  prescribed.  The  plaintiff  offered  his 
vote,  and  offered  to  take  the  oath  prescribed,  but  the  defend- 
ant, who  was  an  inspector  of  the  election,  refused  to  admin- 
ister said  oath,  or  to  permit  him  to  vote,  and  he  was 
permitted  to  prove  as  his  justification,  that  the  plaintiff  was 
not  a  legal  voter,  and  that  if  he  had  taken  the  oath,  he  would 
have  sworn  falsely. 

§  2D6..  Subject  to  the  qualification  above  stated,  the  gen- 
eral rule  is  that  a  statute  prescribing  the  form  of  oath  to  be 
taken  by  a  person  offering  to  vote,  and  requiring  the  vote  to 
be  received  if  the  oath  be  taken,  leaves  no  discretion  in  the 
judges  of  election,  and  takes  from  them  all  power  to  decide 
upon  the  qualifications  of  a  voter.^  Thus  in  New  York  it  is 
held  that,  except  in  certain  special  cases,  (as  where  the  party 
has  been  convicted  of  a  crime,  or  has  made  a  bet  on  the  elec- 
tion), the  voter  is  made  the  judge  of  his  own  qualifications 

1 17  Ind.,  536. 

2  [United  States  v.  Egan,  30  Fed.  Rep.,  498.] 

»[Wolcott  V.  Holcomb,  97  Mich.,  361.] 


224:  ELECTIONS.  [OHAP.  IX. 

and  liis  conscience,  for  the  occasion,  takes  the  place  of  every 
other  tribunal.  If  there  is  any  doubt  as  to  the  voter's  qual- 
ifications, the  inspectors  are  required  to  examine  him  on 
oath,  touching  the  same,  and  if,  in  their  opinion,  he  be  not 
duly  qualified,  they  are  to  admonish  him  as  to  the  points  in 
which  they  consider  him  deficient;  nevertheless,  if  after  this 
he  persists  in  his  claim  to  vote,  they  are  compelled  to  admin- 
ister to  him  the  general  oath  in  which  he  afiirms  the  posses- 
sion in  himself  of  all  the  legal  qualifications,  and  if  he  takes 
the  oath,  his  vote  must  be  received;  the  inspectors  have  no 
discretion  in  the  matter;  they  can  only  reject  the  vote,  if  he 
refuses  to  answer  the  interrogatories  put  to  him  touching  his 
qualifications,  or  to  take  the  general  oath.* 

§  2'9Y.  In  Bacon  v.  Benchley,^  which  was  an  action  to 
recover  damages  against  selectmen,  for  refusing  to  place  the 
plaintiff's  name  on  the  list  of  voters,  it  appeared  that  the 
plaintiff  was  duly  qualified,  that  he  applied  to  the  selectmen 
to  place  his  name  on  the  list,  and  that  they  refused  the  ap- 
plication. It  further  appeared,  however,  that  afterward,  and 
before  the  close  of  their  session,  the  selectmen  reconsidered 
their  refusal,  and  did  place  plaintiff's  name  on  the  list,  but 
of  this  he  was  not  informed.  Held^  that  plaintiff  could  not 
recover,  and  that  it  was  his  duty  to  ascertain  after  the  close 
of  the  "  list,"  that  his  name  was  not  on  it,  before  he  could 
hold  the  selectmen  liable.  This,  for  the  reason,  that  the 
selectmen  had  the  right  to  alter  or  correct  the  list,  and  to 
insert  a  name  on  it,  up  to  the  close  of  the  session  for  revis- 
ing. The  Court  was  of  opinion  that  the  defendants  did 
seasonably  place  the  plaintiff's  name  on  the  list. 

§  298.  We  have  already  seen,  that  according  to  the  de- 
cisions in  Massachusetts,  it  is  incumbent  upon  a  person 
offering  to  vote  to  furnish  to  the  selectmen  suflScient  evi- 
dence of  his  having  the  legal  qualifications  of  a  voter.  It 
ieems  that  where  a  voter,  before  offering  his  vote,  makes 

» People  V.  Pease,  80  Barb.,  588;  S.  C,  27  N.  T.,  4S. 
•  2  CuBh.,  100. 


CHAP.  IX.J  OFFICEKS.  225 

statements  not  under  oath,  to  the  selectmen,  relating  to  his 
residence,  in  an  action  against  such  selectmen  for  refusing 
his  vote,  the  plaintiff  may  prove  that  he  made  such  state- 
ments, and  what  they  were.*  But  it  would  doubtless  be 
otherwise  if  the  plaintiff  had  been  requested  by  the  select- 
men to  make  his  statement  under  oath,  and  had  not  done  so. 
In  determining  the  question  of  a  party's  right  to  vote,  the 
statements  of  such  party  concerning  his  residence,  can  not 
be  overlooked  or  disregarded,  but  the  party  must,  if  required, 
make  oath  to  his  statement. 

§  299.  Where  an  officer  of  election  has  decided  a  diffi- 
cult and  doubtful  question  against  the  right  of  a  person 
claiming  a  vote,  he  will  be  deemed,  until  the  contrary  ap- 
pears, to  have  acted  without  malice,  even  though  his  decision 
may  have  been  erroneous.  Thus,  in  New  York,  the  inspect- 
ors refused  the  vote  of  a  registered  citizen,  who  had  been 
challenged  on  the  ground  that  he  was  a  deserter  from  the 
U.  S.  military  service,  it  appearing  that  by  the  act  of  Con- 
gress, deserters  were  rendered  incapable  of  exercising  the 
rights  of  citizens.  In  a  suit  against  these  inspectors  for 
refusing  this  vote,  it  was  held  that  they  were  not  liable 
without  proof  of  malice  notwithstanding  the  fact  that  the 
act  of  Congress  was  afterward  construed  to  refer  only  to  de- 
serters who  had  been  properly  convicted  as  such.^ 

§  300.  And  it  was  held  in  Goetchens  v.  Matthewson  that 
in  an  action  for  damages  against  judges  for  corruptly  refus- 
ing the  vote  of  the  plaintiff,  the  fact  that  the  defendants  knew 
that  plaintiff  differed  from  them  in  his  political  sentiments  is 
admissible  as  an  element  of  proof  to  be  considered  by  the  jury 
together  with  other  facts,  to  determine  how  far  they  were 
influenced  by  bias,  prejudice,  or  corrupt  motives  in  rejecting 

>  Lombard  v.  Oliver,  7  Allen,  155. 

2  Goetchens  v.  Matthewson,  5  Lans.,  N.  T.,  214.  As  to  what  will  amount 
to  an  unreasonable  refusal  by  election  oflQcera  to  receive  the  vote  of  a 
qualified  elector,  see  Sanders  v.  Getchell,  76  Me.,  158;  Pierce  v.  Getch- 
ell,  Id.,  216;  [Hannon  v.  Grizzard,  96  N.  C,  293]. 
15 


226  ELECTIONS.  [chap.  IX. 

his  vote.  This  ruling  was  probably  correct,  and  yet  such 
proof  should  have  little  or  no  weight,  unless  it  appears  from 
the  acts,  declarations,  or  conduct  of  the  defendants,  that  they 
were  not  disposed  to  treat  fairly  and  honestly  the  claims  of  a 
political  opponent.  The  fact  that  the  defendants  and  the 
plaintiff  differed  in  politics  standing  alone,  should  be  held  as 
a  fact  of  no  moment.  If  it  were  otherwise  the  judges  of  an 
election  would  not  be  safe  in  deciding  against  the  right  of  a 
political  opponent  to  vote  except  in  the  clearest  case.  It 
would  destroy  that  independence  that  is  requisite  to  judicial 
fairness. 

§  301 .  If  a  registered  voter  tenders  his  vote  at  an  elec- 
tion, and  the  judges  willfully,  corruptly  and  fraudulently  re- 
fuse to  receive  it,  he  is  entitled  to  recover  in  an  action 
against  them,  such  exemplary  damages  as  the  jury  may  con- 
sider proper  under  the  circumstances.  ^  But  in  no  case  can 
a  party  recover  exemplary  damages  unless  willful  and  cor- 
rupt action  on  the  part  of  the  ofhcers  charged  is  proven,  and 
indeed,  as  we  have  already  seen,  in  most  of  the  States,  the 
officers  of  election  are  not  liable  at  all — not  even  for  actual 
damages — unless  a  corrupt  purpose  is  shown.  It  was  also 
held  in  the  same  case,  that  where  the  defendant  claimed  to 
have  rejected  plaintiff's  vote  upon  the  ground  of  his  disloyal 
sentiments,  it  was  proper  for  plaintiff  to  show  that  the  de- 
fendant, as  register,  had  permitted  another  person,  known  to 
hold  the  same  disloyal  sentiments,  to  be  registered  as  a  voter. 
This  was  admitted  as  tending  to  show  malice  as  against  the 
plaintiff.* 

» Elbin  V.  Wilson,  33  Md.,  135. 

•  In  determining  the  actual  and  not  vindictive  damages  of  a  party  in- 
jured by  the  making  and  returning  of  a  false  abstract  of  votes  by  the 
county  clerk,  the  good  faith  and  honest  intentions  of  the  latter  are  no 
protection  to  him  or  to  the  sureties  on  his  official  bond  for  such  breach 
of  official  duty.    Thomas  v.  Hinkle,  85  Ark.,  450. 


CHAPTER  X. 

OF  THE  PRIMA  FACIE  RIGHT  TO  AN  OFFICE. 

§  302.    Importance  of  the  subject 

302.  The  person  holding  ordinary  credentials  presumed  elected  and 

allowed  to  act  pending  contest. 

303.  Credentials,  form  of. 

304.  Certificate  of  majority  of  certifying  board  sufficient. 

305.  Credentials  of  members  of  Congress. 

306.  Who  may  issue.  ■^  » 

306-308.    Certificate  of  election  confers  vested  right,  but  does  not  oust 

jurisdiction  of  proper  tribunal. 
306a.  The  rule  in  North  Carolina. 

307.  Power  of  Governor  to  revoke  commission. 

309-313.    Power  of  Lower  House  of  Congress  when  no  certificate  has 

been  issued  to  either  claimant. 
814    Effect  of  certificate  showing  only  partial  canvasa 
315,  816.    Certificate  of  election  cannot  be  collaterally  attacked. 
817.    Courts  of  equity  will  not  interfere  with  contested  election  case. 
818-321.    Further  discussion  as  to  effect  of  certificate  of  election. 

§  302.  Where  two  or  more  persons  claim  the  same 
office,  and  where  a  judicial  investigation  is  required  to  settle 
the  contest  upon  the  merits,  it  is  often  necessary  to  deter- 
mine which  of  the  claimants  shall  be  permitted  to  qualify 
and  to  exercise  the  functions  of  the  office,  pending  such 
investigation.  If  the  office  were  to  remain  vacant  pending 
the  contest  it  might  frequently  happen  that  the  greater  part 
of  the  term  would  expire  before  it  could  be  filled;  and  thus 
the  interests  of  the  people  might  suffer  for  the  want  of  the 
services  of  a  public  officer.  Besides,  if  the  mere  institution 
of  a  contest  was  to  be  deemed  sufficient  to  prevent  the 
swearing  in  of  the  person  holding  the  usual  credentials,  it  is 
easy  to  see  that  very  great  and  serious  injustice  might  be 
done.     If  this  were  the  rule,  it  would  only  be  necessary  for 


228  ELECTIONS.  [chap.     X. 

an  evil  disposed  person,  to  contest  the  right  of  his  successful 
rival,  and  to  protract  the  contest  as  long  as  possible,  in  order 
to  deprive  the  latter  of  his  office  for  at  least  a  part  of  the 
term.  And  this  might  be  done,  by  a  contest  having  little  or 
no  merit  on  his  side,  for  it  would  be  impossible  to  discover, 
in  advance  of  an  investigation,  the  absence  of  merit.  And 
again,  if  the  party  holding  the  ordinary  credentials  to  an 
office,  could  be  kept  out  of  the  office  by  the  mere  institution 
of  a  contest,  the  organization  of  a  legislative  body,  such  for 
example  as  the  House  of  Representatives  of  the  United 
States,  might  be  altogether  prevented,  by  instituting  contests 
against  a  majority  of  the  members,  or  what  is  more  to  be 
apprehended,  the  relative  strength  of  political  parties  in 
such  a  body  might  be  changed,  by  instituting  contests 
against  members  of  one  or  the  other  of  such  parties.  These 
considerations  have  made  it  necessary  to  adopt,  and  to 
adhere  to,  the  rule,  that  the  person  holding  the  ordinary 
credentials  shall  be  qualified,  and  allowed  to  act  pending  a 
contest  and  until  a  decision  can  be  had  on  the  merits.^ 

§  303.  'No  particular  form  of  credentials  is  required.  It 
is  sufficient  if  the  claimant  to  an  office  presents  a  certificate 
signed  by  the  officer  or  officers  authorized  by  law  to  issue 
credentials,  and  stating  generally  the  fact  that  the  election 

1  [In  the  case  of  Chalmers  v.  Manning,  the  contestee  in  his  answer  to 
the  notice  of  contest  stated  that  he  would  not  take  his  seat  in  Congress 
nor  ask  to  have  his  name  enrolled  as  a  member  thereof  until  his  right 
thereto  had  been  vindicated.  Acting  in  accordance  with  this  state- 
ment he  failed  to  present  his  certificate  of  election  to  the  clerk  prior  to 
the  organization  of  the  House,  but  subsequently  caused  his  certificate, 
which  was  in  due  form,  to  be  presented,  and  claimed  his  right  to  be 
sworn  in  as  a  member  pending  the  contest  Because  of  Mr.  Manning's 
admissions  and  refusal  to  present  his  certificate,  the  House  of  Repre- 
sentatives refused  to  seat  him  upon  his  prima  facie  title,  and  his  district 
remained  tmrepresented  throughout  the  contest.  Chalmers  v.  Mauning,^ 
Mob.,  7.] 


CHAP.  X.J  EIGHT   TO   AN   OFFICE.  229 

was  duly  held  and  that  the  claimant  is  duly  elected  to  the 
office  in  question.  If  several  officers  or  persons  are  by  law 
required  to  join  in  such  a  certificate,  it  is  generally  sufficient 
if  a  majority  have  signed  it.^ 

§  304.  Where  the  statute  requires  the  votes  of  several 
counties  composing  a  congressional  district  to  be  canvassed 
by  one  judge  from  each  county,  and  that  the  result  shall  be 
certified  by  a  board  composed  of  one  judge  from  each  county, 
the  certificate  of  four  out  of  five  such  judges,  based  upon  a 
full  canvass  of  the  vote,  is  prima  fade  sufficient.  The  re- 
fusal of  the  fifth  judge  to  join  in  the  certificate  will  not  in- 
validate it.' 

§  305.  In  the  absence  of  any  express  provision  of 
law  authorizing  any  officer  to  certify  to  the  due  election  of 
members  of  Congress,  it  is  presumed  that  under  the  usages 
of  the  House  a  certificate  under  the  great  seal  of  the  State, 
signed  by  its  chief  executive  officer,  would  constitute  suffi- 
cient credentials.' 

§  306.  It  is  enough  for  a  prima  facie  case  if  the  certifi- 
cate comes  from  the  proper  officer  of  the  State,  and  clearly 
shows  that  the  person  claiming  under  it  has  been  adjudged 
to  be  duly  elected  by  the  officer  or  board  on  whom  the  law 
of  the  State  has  imposed  the  duty  of  ascertaining  and  de- 
claring the  result.*  In  Kerr  v.  Trego^  it  is  held  that  the 
certificate  of  election  sanctioned  by  law  or  usage  is  prima 
facie  evidence  of  title  to  the  office,  and  can  only  be  set  aside 
by  a  contest  in  the  form  prescribed  by  law.  In  this  latter 
case  will  be  found  also  an  elaborate  and  able  discussion  of 
the  general  subject  of  the  organization  of  legislative  bodies, 
to  which  the  reader  who  may  desire  to  investigate  that  sub- 
ject is  referred. 

iPosf,  §314 

^Coflroth  V.  Koontz,  2  Bart.,  25. 

8  W.  T.  Clark's  Case,  42d  Congress  [Smith,  6], 

4Id. 

»47Pa.St,39aL 


230  ELECTIONS.  [chap.  X. 

[§  306a.  It  has  been  held  in  North  Carolina  that  while 
the  result  of  a  vote  for  a  county  office  is  conclusively  set- 
tled, so  far  as  the  county  commissioners  are  concerned,  by 
the  certificate  of  the  board  of  canvassers,  still,  if  the  com- 
missioners rightly  refuse  to  administer  the  oath  of  office  to 
one  elected  but  ineligible  to  the  office,  a  court  will  not  com- 
pel them  to  do  so.' 

And  it  has  been  held  in  a  later  case  in  the  same  State 
that  where  county  commissioners,  prompted  by  the  protests 
of  a  considerable  number  of  electors,  and  after  honest  and 
diligent  examination  of  facts,  have  refused  to  induct  a  claim- 
ant into  an  office  to  which  he  has  been  elected,  on  the  ground 
that  he  is  disqualified,  they  will  not  be  held  liable  to  such 
claimant  in  damages,  although  he  is  in  fact  eligible  to  the 
office.^] 

§  307.  Where  the  statute  gives  the  Governor  of  a  State 
the  power,  and  makes  it  his  duty,  to  commission  the  person 
elected  to  an  office,  the  issuing  of  a  commission  by  him 
confers  a  vested  right  upon  the  person  commissioned,  which 
nothing  but  a  judicial  decision  can  take  away  or  authorize 
the  Grovernor  to  recall.  It  was  accordingly  held  in  Ewing  v. 
Thompson,^  that  where  the  Governor  in  1861  commissioned 
Ewing  as  sheriff  of  the  city  and  county  of  Philadelphia,  and 
afterwards  undertook  to  commission  Thompson  as  duly 
elected  at  the  same  election  to  the  same  office,  the  latter 
commission  was  void  and  the  former  valid,  until  set  aside 
by  a  contest.  "  The  power  of  the  Governor,"  says  Strong,  J., 
in  that  case,  "to  revoke  a  commission  once  issued  to  an 
officer,  not  removable  at  the  pleasure  of  the  Governor,  may 
well  be  denied ;  even  where  he  has  the  power  of  appointment 
of  such  an  officer,  an  appointment  once  made  is  irrevocable ; 
much  more,  it  would  seem,  is  a  comjnission  issued  by  him 

1  [Worthy  v.  Barrett,  63  N.  C,  199.] 
«  [Hannon  v.  Grizzard,  96  N.  C,  293.] 
•43  Pa.  St,  372. 


CHAI.  i.]  EIGHT   TO   AN   OFFICE.  281 

incapable  of  being  recalled  or  invalidated  by  himself,  when 
the  appointing  power  is  located  elsewhere,  and  where  his 
act  in  issuing  the  commission,  is  not  discretionary  with  him, 
but  is  only  the  performance  of  a  ministerial  duty."*  No 
doubt  the  appointing  officer  may  reconsider  his  action  in  the 
matter  of  making  an  appointment  at  any  time  before  the 
appointment  is  complete;  but  the  appointment,  when  fully 
executed  by  the  performance  of  the  last  act  made  necessary 
in  its  execution,  is  not  revocable  without  the  consent  of  the 
appointee.  8 

§  308.  But,  of  course,  a  commission  given  by  the  governor, 
or  other  competent  authority,  does  not  oust  the  jurisdiction 
of  the  proper  tribunal,  in  a  contested  election  case.  It  is 
simply  evidence  of  the  right  to  hold  the  office;  gives  color 
to  the  acts  of  the  incumbent,  and  constitutes  him  an  officer 
de  facto, ^  The  election  being  set  aside,  or  the  person  holding 
the  commission  being  held  not  elected,  by  a  tribunal  of  com- 
petent jurisdiction,  the  commission  falls  to  the  ground.  The 
person  duly  commissioned  must  exercise  the  functions  of  the 
office  until,  upon  an  investigation  upon  the  merits^  it  is 
judicially  determined  otherwise.'' 

§  309.  In  the  case  of  Morton  v.  Daily ^^  there  were  two 
certificates  of  election  issued  by  the  same  governor;  first,  a 
certificate  declaring  Mr.  Morton  duly  elected,  and,  at  a  later 
date,  a  certificate  declaring  Mr.  Daily  duly  elected.  The 
second  certificate  was  issued  upon  the  alleged  discovery  by 
the  governor,  of  fraud  in  the  vote  counted  for  Mr.  Morton 
and  by  the  second  certificate  the  governor  revoked,  as  far  as 

1  And  see  the  important  case  of  Marbury  v.  Madison,  1  Cranch,  137. 

2  State  V.  Van  Buskirk,  4  N.  J.  L.,  463. 

3  [Dean  v.  Field,  1  Ells.,  190.] 

*  Upon  the  subject  of  the  effect  of  a  commission,  see  Ewing  v.  Filley, 
43  Pa.  St.,  384;  State  v.  Johnson,  17  Ark.,  407;  Hunter  v.  Chandler,  45 
Mo.,  452. 

6 1  Bart,  403. 


232  ELECTIONS.  [chap.  X. 

he  was  able,  the  first.  The  House  allowed  the  holder  of  the 
last  certificate  to  be  sworn  in,  and  to  occupy  the  seat  pend- 
ing the  contest.  By  so  doing,  however,  the  House  assumed 
that  the  governor  might  go  behind  the  returns,  investigate 
questions  of  fraud,  and,  assuming  a  judicial  character,  deter- 
mine such  questions;  and  it  also  assumed  that  the  governor 
possessed  the  power  to  revoke  a  certificate  once  issued  by 
him.  But  there  seems  to  be  no  doubt  but  that,  in  the  ab- 
sence of  a  statute  authorizing  the  governor  to  institute  a 
judicial  inquiry  into  the  manner  of  conducting  an  election, 
he  is  bound  by  the  returns,  and  has  no  power  beyond  the 
certification  of  the  result,  as- shown  thereby.  The  duty  of 
investigating  charges  of  fraud,  and  deciding  upon  them  can 
never  be  justly  assumed  by  an  executive  oflBcer,  but  belongs 
exclusively  to  such  judicial  or  qiiasi  judicial  tribunal,  as  the 
law  may  designate  for  that  purpose.* 

§  310.  The  case  of  Morton  v.  Daily,  sujpra,  was  followed 
by  the  House  in  Hoge  v.  Reed.^  But  it  must  have  been 
without  dae  consideration,  for  the  same  House  held  the  con- 
trary doctrine  in  Wallace  v.  Siinjpson.^  In  that  case  the 
board  of  State  canvassers,  being  by  law  required  to  certify 
the  result  of  the  election,  gave  their  certificate  declaring  that 
"W".  D.  Simpson  "was  duly  elected  by  a  majority  of  votes, 
representative  in  the  Forty-first  Congress,"  and  upon  that 
certificate  the  governor  issued  to  Mr.  Simpson  the  usual 
commission  or  certificate  of  election.  By  another  certificate 
the  board  of  canvassers  declared  that  Alexander  Wallace  had 
"received  a  majority  of  the  legal  votes"  cast  for  representa- 
tive, and  as  explanatory  of  this  contradiction  on  their  part, 
they  made  and  signed  a  "statement"  addressed  to  the  House 
of  Representatives,  detailing  certain  alleged  irregularities 
and  frauds  committed  in  the  conduct  of  this  election,  and  de- 

»  Switzler  v.  Dyer,  2  Bart,  777 ;  State  «,  Rodman,  Sec'y  of  State,  43  Mo., 
256;  State  v.  Steers,  44  Mo.,  228-228;  Switzler  o.  Anderson,  2  Bart.,  874. 
»  2  Bart.,  540. 
»  2  Bart.,  552. 


CHAF.  "JLJ  ■  EIGHT   TO   AN    OFFICE.  233 

daring  that,  although  they  had  felt  themselves  in  duty  bound 
to  issue  the  certificate  of  election  to  Mr.  Simpson,  yet  they 
were  convinced  that  he  was  not  duly  elected.  Upon  these 
papers  the  majority  of  the  committee  of  elections  reported 
that  Mr.  Wallace  was  entitled,  prima  facie^  to  the  seat,  and 
they  submitted  a  resolution  that  he  be  sworn  in,  pending  the 
contest,  upon  the  merits.  But  the  House,  after  debate, 
adopted  the  minority  report,  which  decided  the  jprima  facie 
case  against  Mr.  Wallace.  This  decision  of  the  House  ap- 
pears to  have  been  based  upon  the  following  grounds: 

1.  That  the  certificate  of  election  signed  by  the  governor 
was  in  due  form  and  declared  the  election  of  Simpson,  and 
that  the  House  should  not  look  beyond  it  in  deciding  the 
^ima  facie  case. 

2.  That  the  subsequent  statement  was  an  unauthorized 
and  unofiicial  paper  of  no  value  as  evidence,  and  could  not 
be  properly  considered;  but  if  considered,  it  showed  upon  its 
face  that  the  board' of  canvassers  had  gone  outside  of  their 
province,  in  order  to  investigate  charges  of  fraud  and  violence 
in  the  conduct  of  the  election. 

3.  That  the  board  having  made  a  certificate  of  the  result, 
and  transmitted  the  same  to  the  secretary  of  State,  had  no 
power  thereafter  to  make  another  and  different  certificate. 

The  correctness  of  these  propositions  is,  as  we  have  had 
occasion  to  show  elsewhere,  well  established  by  judicial  de- 
cisions, as  well  as  by  frequent  decisions  of  the  House  of 
Representatives  itself. 

§  311.  In  the  case  of  Sheaf e  v.  Tillman,'^  a  like  qnes- 
tion  was  again  considered,  and  the  sound  rule  that  a  minis- 
terial or  executive  officer  can  exercise  no  judicial  functions, 
was  adhered  to.  In  the  report  in  that  case  the  doctrine  is 
laid  down  as  follows:* 

"  There  is  no  law  of  the  State  of  Tennessee  that  gives 
authority  to  the  Governor  to  reject  the  vote  of  any  county 

» 2  Bart.,  907. 
«  P.  910. 


234  -   ELECTIONS.  TCHAP.  X. 

or  part  of  a  county;  his  duty  is  only  to  compare  the  returns 
received  by  him  with  those  returned  to  the  office  of  the 
Secretary  of  State,  and  upon  such  comparison  being  made, 
to  "  deliver  to  the  candidate  receiving  the  highest  number  of 
votes  in  his  district  the  certificate  of  his  election  as  Repre- 
sentative to  Congress."*  If  illegal  votes  have  been  cast,  if 
irregularities  have  existed  in  the  elections  in  any  of  the 
counties  or  precincts,  if  intimidation  or  violence  has  been 
used  to  deter  legal  or  peaceable  citizens  from  exercising  their 
rights  as  voters,  to  this  House  must  the  party  deeming  him- 
self aggrieved,  look  for  redress.  This  great  power  of  deter- 
mining the  question  of  the  right  of  a  person  to  a  seat  in 
Congress,  is  not  vested  in  the  executive  of  any  State,  but 
belongs  solely  to  the  House  of  Representatives. ^  The  action 
of  the  Governor,  so  far  as  he  has  thrown  out  the  votes  of 
counties  or  parts  of  counties,  is  to  be  disregarded,  and  the 
matters  in  dispute  are  to  be  settled  upon  the  actual  returns 
and  the  evidence  introduced,  independent  of  the  doings  of 
the  executive." 

And  this  ruling  is  according  to  the  weight  of  authority 
in  the  House,  while  it  has  the  support  not  only  of  reason 
and  sound  policy,  but  of  an  almost  unbroken  line  of  judicial 
decisions,  extending  far  back  through  our  history  as  a 
nation. 

§  312.  There  is  still  another  class  of  cases  which  have 
arisen  in  the  lower  house  of  Congress,  in  which  neither  party 
holds  credentials,  the  governor  or  other  returning  officer 
having  refused  to  declare  either  party  elected.  In  some  of 
these  cases  the  House  has  undertaken  upon  such  document- 
ary evidence  as  it  has  been  able  to  bring  before  it,  without 
delay,  to  decide  the  prima  fade  claim,  and  order  one  or 
the  other  to  be  sworn  in,  pending  the  contest.' 

§  313.     Of  course  the  House  must,  in  each  case  of  thi& 

»  Code  of  Tennessee,  Sec.  935,  page  239. 

«  Constitution  United  States,  Art.  1,  Sec.  5. 

»  CoflEroth  V.  Koontz,  2  Bart.,  25 ;  Foster  v.  Covode,  Id.  519. 


CHAP.  X.]  RIGHT   TO   AN    OFFIOB.  285 

character,  judge  whether  there  is  before  it  sufficient  prima 
facie  evidence  of  the  election  of  either  one  of  the  claimants; 
but  as  a  general  rule,  it  is  believed  that  in  the  absence  of 
credentials,  no  one  should  be  admitted  to  the  seat  in  advance 
of  an  investigation  upon  the  merits.  And  if  this  general 
rule  is  to  be  departed  from  in  any  case,  it  should  be  only 
after  a  special  investigation  by  a  committee,  into  the  prima 
facie  case,  and  after  a  report  thereon.  And  such  special 
inquiry  and  report  can  scarcely  be  possible,  unless  there  is 
something  in  the  nature  of  credentials  or  of  written  evidence 
of  the  election  of  one  or  the  other  claimant.  If  the  returns 
are  duly  certified,  the  House  may  act  upon  these;  or  if 
there  is  an  informal  certificate,  the  House  may  order  an  in- 
quiry into  its  effect.  But  if  there  is  no  record  or  other  docu- 
mentary evidence  to  show  what  the  result  of  the  election 
was,  it  is  believed  that  a  full  investigation  upon  the  merits 
should  precede  the  swearing  in  of  either  applicant.  If  the 
House  finds  itself  obliged  to  take  testimony  generally  to  de- 
cide the  prima  facie  case,  it  will  generally  find  that  it  can 
not  stop  short  of  hearing  all  the  evidence  and  deciding  upon 
the  merits. 

§  314.  It  is  to  be  observed  in  this  connection  that  while 
in  determining  the  prima  facie  right  to  a  seat,  the  House 
of  Representatives  will  not  look  behind  the  certificate,  if  it 
be  signed  by  the  proper  ofiicers,  and  if  it  contains  a  state- 
ment in  unequivocal  terms  of  the  result  of  the  election;  yet 
something  may  appear  upon  the  face  of  the  certificate  itself 
to  destroy  or  impair  its  value  as  prima  fade  evidence. 

If,  for  instance,  the  certificate  states  that  the  vote  of  one 
county  out  of  five  has  not  been  canvassed,  it  seems  that  this 
would  make  it  necessary  even  to  the  determination  of  the 
prima  facie  case  to  inquire  what  the  vote  was  in  the  county 
omitted.  1  And  if  it  appear  that  the  vote  of  the  county 
omitted  would  have  changed  the  result,  the  value  of  such  a 


236  ELECTIONS.  [chap.  X. 

certificate  is  destroyed.  But  if  it  appear  that  the  vote  of 
the  omitted  county  was  not  material  to  the  result,  then  ac- 
cording to  the  ruling  of  the  House  in  C  off  roth  v.  Koonts,^  the 
certificate  is  good,  although  based  only  upon  the  four  coun- 
ties canvassed.  "Whenever,  therefore,  it  appears  upon  the 
face  of  a  certificate  of  election,  that  one  or  more  of  the 
counties  composing  the  district  have  been  omitted  from  the 
canvass,  it  is  the  duty  of  the  House,  before  determining  the 
prima  facie  case,  to  inquire  into  the  effect  of  such  omission 
upon  the  result  of  the  canvass,  and  to  treat  the  certificate  as 
prima  facie  good  only  in  case  it  appears  that  the  omitted 
vote  would  not  change  the  result,  or  contradict  the  certifi- 
cate, if  admitted. 

§  61^,  The  principal,  and  almost  the  only  case,  in  which 
the  lower  house  of  Congress  has  ever  denied  to  a  person 
holding  regular  credentials,  the  right  to  be  sworn  and  to 
take  his  seat  pending  the  contest,  is  the  celebrated  New 
Jersey  CaseJ*  In  that  case  one  set  of  claimants  held  the 
regular  certificate  of  election  signed  by  the  Governor,  and 
another  set  held  the  certificate  of  the  Secretary  of  State,  that 
they  had  received  a  majority  of  the  votes  cast  in  their  re- 
spective districts.  After  a  long  and  angry  debate  the  house, 
(being  yet  unorganized,)  refused  to  admit  either  set  of 
claimants  to  their  seats.  Subsequently,  and  after  a  partial 
investigation,  the  holders  of  the  Secretary's  certificates  were 
admitted  to  seats  pending  the  contest,  and  at  the  end  of  the 
contest  these  persons  were  confirmed  in  their  seats.  This 
precedent  has  never  since  been  followed  in  a  single  instance. 
It  is  so  clearly  wrong  and  as  a  precedent,  so  exceedingly 
dangerous,  that  the  House  has  not  hesitated  to  disregard  it 
entirely  on  every  occasion  since  when  the  question  has  arisen. 

§  316.  The  efiect  of  the  returns  of  an  election  is  not 
open  for  consideration  in  a  proceeding  in  which  the  title  to 
the  office  comes  up  collaterally.     Hence  it  was  held  in  New 

» 2  Bart.,  25. 
« 1  Bart.,  19. 


CHAP.  X.1  KIGHT    TO   AN    OFFICB.  .    237 

York  that  the  law  having  committed  to  the  common  council 
of  a  city,  the  duty  of  canvassing  the  returns  and  determin- 
ing from  them  the  result  of  the  election  for  mayor,  and  the 
council  having  performed  that  dnty,  and  made  a  determina- 
tion, the  question  as  to  the  ejffect  of  the  returns  could  not  be 
considered,  in  an  action  where  the  person  declared  elected 
was  not  a  party,  and  in  which  the  question  of  his  right  to 
the  office  arose  collaterally,  "  If,"  says  Denio,  «/.,  "  the 
question  had  arisen  upon  an  action  in  the  nature  of  a  quo 
warranto  information,  the  evidence  would  have  been  compe- 
tent," and  the  evidence  referred  to  was  that  offered  to  im- 
peach the  canvass  made  by  the  common  council.  "  But,"  he 
continues,  "it  would  be  intolerable  to  allow  a  party  affected 
by  the  acts  of  a  person  claiming  to  be  an  officer,  to  go  be- 
hind the  official  determination  to  prove  that  such  official 
determination  arose  out  of  mistake  or  fraud.*  The  true 
rule  is,  that  the  certificate  of  the  board  of  canvassers  declar- 
ing the  result  of  the  election  is,  in  a  controversy  arising  be- 
tween the  party  holding  it  and  a  stranger,  conclusive;  but 
in  a  proper  action,  properly  entitled,  to  impeach  it  and  try 
the  title  to  the  office,  it  is  only  prima  facie  evidence  of  the 
right.  3 

§  317.  The  merits  of  a  contested  election  can  not  be 
taken  from  the  proper  tribunal  authorized  by  law  to  try  it, 
and  brought  for  adjudication  into  a  court  of  equity,  upon  a 
bill  to  enjoin  the  party  holding  the  certificate  of  election 
from  using  it,  upon  the  ground  that  it  was  procured  by 
fraud.  This  doctrine  is  strikingly  illustrated  by  the  decision 
of  the  Supreme  Court  of  Pennsylvania  in  Hulseman  v. 
Rems,^  which  was  a  petition  for  an  injunction  upon  this 

»Hadleyt).  City  of  Albany,  33  N".  T.,  603.  And  see  also  Peyton  «. 
Brent,  3  Or.  C.  C,  424;  Hunter  v.  Chandler,  45  Mo.,  453. 

="  See  People  v.  Cook,  8  N.  Y.,  67;  People  v.  Vail,  20  Wend.,  13;  Peo- 
ple V.  Jones,  30  Cal.,  50;  Commonwealtli  «.  Oo.  Commissioners,  5  Bawle> 
75. 

» 41  Pa.  St.,  398. 


238  ELECTIONS.  [chap.  X. 

ground.  The  court,  although  satisfied  that  the  officer  in 
question  held  a  certificate  based  upon  the  grossest  of  frauds, 
amounting  even  to  the  actual  forgery  of  some  of  the  returns, 
yet  refused  to  interfere  by  injunction,  and  for  the  following 
among  other  reasons:  "If,"  says  the  court,  "  in  this  way 
we  suffer  a  gross  fraud  to  pass  through  our  hands  without 
remedy,  it  is  not  because  we  have  any  mercy  on  the  fraud, 
but  because  we  can  not  frustrate  it  by  any  decree  of  ours 
without  an  act  of  usurpation.  Another  tribunal  is  ap- 
pointed to  administer  the  remedy  and  we  believe  that  on  proper 
application,  it  will  administer  it  rightly  according  to  the 
evidence  it  may  have;  and  if  we  had  any  doubts  of  this  we 
should  still  not  be  justified  in  interfering." ^  There  can  be 
no  doubt  but  that  a  certificate  of  election  regular  in  form, 
and  signed  by  the  proper  authority,  constitutes  prima  facie 
evidence  of  title  to  the  office,  which  can  only  be  set  aside  by 
such  proceedings  for  contesting  the  election  as  the  law  pro- 
vides.* The  certificate  whether  rightfully  or  wrongfully 
given,  confers  upon  the  person  holding  it,  the  prima  facie 
right  to  the  office.'  If,  however,  the  certificate  contains 
upon  its  face  a  recital  of  facts,  and  these  facts  show  affirma- 
tively that  the  party  holding  it  was  not  duly  elected,  it  may 
be  disregarded.* 

§  318.  The  regular  certificate  of  election  properly  signed 
is,  as  we  have  seen,  to  be  taken  as  sufficient  to  authorize  the 
person  holding  it  to  be  sworn  in.  It  ib  priina  facie  evidence 
of  his  election  and  the  only  evidence  thereof  which  can  be 
considered  in  the  first  instance,  and  in  the  course  of  the  or- 
ganization of  a  legislative  body.  But  there  are  questions 
which  may  be  raised,  touching  the  qualifications  of  a  person 

» And  see  Moulton  v.  Reid,  54  Ala.,  320. 

»  Commonwealth  o.  Baxter,  35  Pa.  St.,  263;  Kerr  «.  Trego,  47  Pa.  St, 
292;  State  -o.  The  Governor,  1  Dutch  (N.  J.),  331. 

«  People  c.  Miller,  16  Mich.,  56;  Crowell  -o.  Lambert,  10  Minn.,  369; 
State  «.  Sherwood,  15  Minn.,  221 ;  State  «.  Churchill,  Id.,  455. 

*  Hartt  t.  Harvey,  32  Barb.,  55,  61. 


CHAP.  X.}  EIGHT   TO   AN   OFFICE.  239 

elected,  which  may  be  investigated  arid  decided  as  a  part  of 
the  prima  facie  case,  and  as  prellaiinary  to  the  swearing  in 
of  the  claimant.  Thus,  if  a  specific  and  apparently  well 
grounded  allegation  be  presented  to  the  House  of  Rej)resent- 
atives  of  the  United  States,  that  a  person  holding  a  certifi- 
cate of  election  is  not  a  citizen  of  the  United  States,  or  is 
not  of  the  requisite  age,  or  is  for  any  other  cause  inelligible, 
the  House  will  defer  action  upon  the  question  of  swearing  in 
such  person,  until  there  can  be  an  investigation  into  the 
truth  of  such  allegation.  It  is  necessary,  however,  that  such 
allegation  should  be  made  by  a  responsible  party ;  it  is  usu- 
ally made,  or  vouched  for  at  least,  by  some  member  or  mem- 
ber elect  of  the  House.  It  is  to  be  presented  at  the  earl- 
iest possible  moment  after  the  meeting  of  the  House  for 
organization,  and  generally  at  the  time  that  the  person  ob- 
jected to  presents  himself  to  be  sworn  in.  The  person 
objected  to  upon  grounds  such  as  these  is  not  sworn  in 
with  the  other  members,  but  stands  aside  for  the  time  be- 
ing, and  the  House  through  its  committee  with  all  possi- 
ble speed  proceeds  to  inquire  into  the  facts. 

§  S19'.  The  certificate  of  election  does  not  ordinarily,  if 
ever,  cover  the  ground  of  the  due  qualification  of  the  person 
holding  it.  It  may  be  said  that  by  declaring  the  person 
"  duly  elected,"  the  certificate,  by  implication,  avers  that  he 
was  qualified  to  be  elected,  and  to  hold  the  office.  But  it  is 
well  known  that  canvassing  officers  do  not  in  fact  inquire  as 
to  the  qualifications  of  persons  voted  for;  they  certify  what 
appears  upon  the  face  of  the  returns,  and  nothing  more. 
The  certificate,  therefore,  must  be  regarded  as  evidence  of 
the  election  of  the  person  named  therein,  so  far  conclusive, 
that  it  can  not  be  attacked  except  in  the  ordinary  mode  pro- 
vided for  contesting;  but  it  is  not  evidence  of  the  qualijlca- 
tions  of  the  person  named.  The  presumption  always  is,  that 
a  person  chosen  to  an  office  is  qualified  to  fill  it,  and  it  is 
never  incumbent  upon  him  to  prove  his  eligibility.     The 


240  ELECTiONg.  [CHAP.  X. 

certificate  of  election  does  not  add  to  this  presumption,  but 
simply  leaves  it  where  the  law  places  it,  and  he  who  denies 
the  eligibility  of  a  person  who  is  certified  to  be  elected,  mnst 
take  the  burthen  of  proving  that  he  is  not  eligible.  Dur- 
ing the  rebellion  the  House  of  Representatives  repeatedly 
decided  that  a  disloyal  person  should  not  be  sworn  in  as  a 
member  of  that  body,  and  it  was  also  decided  that  a  charge 
of  disloyalty  against  a  member  elect  should  be  investigated 
and  decided,  previous  to  his  being  allowed  to  take  his  seat. 
In  the  case  of  the  Kentucky  Election,^  this  was  the  ruling 
of  the  House.  The  doctrine  was  thus  stated  in  the  commit- 
tee's report: 

"The  committee  are  of  opinion  that  no  person  who  has 
been  engaged  in  armed  hostility  to  the  government  of  the 
United  States,  or  who  has  given  aid  and  comfort  to  its 
enemies  during  the  late  rebellion,  ought  to  be  permitted  to 
be  sworn  as  a  member  of  this  House,  and  that  any  specific 
and  well-grounded  charge  of  personal  disloyalty  made  against 
a  person  claiming  a  seat  as  a  member  of  this  House  ought  to 
be  investigated  and  reported  upon  before  such  person  is  per- 
mitted to  take  the  seat;  but  all  charges  touching  the  dis- 
loyalty of  a  constituency  in  a  State  in  which  loyal  civil 
government  was  not  overthrown  during  the  late  rebellion,  or 
the  illegality  of  an  election,  are  matters  which  pertain  to  a 
contest  in  the  ordinary  way,  and  should  not  prevent  a  person 
holding  a  regular  certificate  from  taking  his  seat." 

§  320.  The  case  of  Hunt  v.  Chilcott^  is  one  of  the  very 
few  cases  in  which  a  certificate  of  election  signed  by  the 
proper  authority,  has  been  held  insuflBcient  to  entitle  the 
holder  to  be  sworn  in  a  member  of  the  House  of  Representa- 
tives of  the  United  States,  and  to  occupy  the  seat,  pending  a 
contest.  The  reason  for  this  action,  however,  was  that  the 
party  holding  the  certificate  had  voluntarily  oflFered  evidence 
which  impeached  it.     The  committee  said  in  their  report: 

» 2  Bart.  33" 
«  2  Bart.,  164. 


CHAP.  X.]  EIGHT   TO   AN    OFFICE.  241 

"But  Mr.  Hunt  did  not  rest  his  case  upon  that  paper 
alone.  He  introduced  Governor  Cummings  in  its  support. 
The  Governor  informed  the  committee,  that  on  the  said  5th 
of  September  a  canvass  of  the  votes  cast  for  delegate  was 
had  iu  his  presence,  by  the  board  of  canvassers;  that  two  of 
said  board  found  that  a  maiority  of  all  the  votes  had  been 
cast  for  George  M.  Chilcott,  and  that  one  of  said  board  dis- 
sented from  this  conclusion,  and  that  he,  the  governor,  con- 
sidering himself  one  of  the  board,  agreed  with  the  dissenting 
member,  making  a  tie,  whereupon  he  determined  the  election 
himself,  and  made  a  certificate  in  opposition  to  the  conclusion 
of  two  members  of  the  board.  In  addition  to  the  Governor's 
statement,  among  the  papers  submitted  by  the  House,  is  a 
report  of  the  board  of  canvassers,  signed  by  Frank  Hall, 
Secretary  of  the  Territory,  and  Richard  E.  Whitsitt,  Auditor 
of  the  Territory,  and  addressed  to  the  Governor,  in  which 
they  state  that  at  the  canvass  held  in  his  presence,  according 
to  law,  they  find  that  Mr.  Chilcott  had  3,529  votes,  and  A. 
C.  Hunt  had  3,421  votes,  by  which  it  would  appear  that  Mr. 
Chilcott  was  elected  delegate  by  108  majority.  The  certifi- 
cate of  the  Governor  thus  appears  to  have  been  issued  in 
violation  of  the  laws  of  the  Territory,  in  order  to  reverse  the 
facts  of  the  canvass.  Under  this  state  of  facts  the  committee 
do  not  feel  authorized  to  report  that  Mr.  Hunt  is  entitled, 
prima  facie,  to  a  seat  as  delegate." 

While,  therefore,  it  was  conceded  that  the  House  should 
not  insist  upon  looking  beyond  the  certificate  in  determining 
&  prima  fade  case,  it  was  held  that  if  the  party  holding  the 
certificate  saw  fit  to  ofifer  evidence  in  addition  to  the  certifi- 
cate, the  House  might  take  notice  of  it. 

§  321.  While  it  is  true,  as  we  have  seen,  that  where  a 
certificate  of  election  is  confined  to  a  statement  that  the  per- 
son to  whom  it  is  given  is  duly  elected,  or  words  to  that 
effect,  it  is  prima  facie  evidence  that  such  person  is  entitled 
to  the  ofiice,  it  is  also  true  that  where  it  recites  the  facts, 
16 


24:2  ELECTIONS.  [chap.  X. 

upon  which  the  certifying  officer  relies  as  his  justification 
for  issuing  it,  and  where,  from  those  facts,  it  clearly  appears 
that  the  person  named  was  not  elected,  the  certificate  de- 
stroys itself.^ 

1  H«rtt  V.  HarT«7,  82  Barlx,  65. 


CHAPTER  XI. 
OF  ELIGIBILITY  TO  OFFICE,  AND  OF  TENURE. 

322.  Qualifications  for  Federal  offices. 

323.  323.    Qualifications  for  State  offices. 

324    Qualifications  of  Representatives  in  Congresa 

324.  Meaning  of  the  term  "  inhabitant "  as  used  in  the  United  States 

Ck)nstitution- 

325.  Residing  abroad  as  representative  of  the  Government  of  the 

United  States. 

326.  A  State  has  no  power  to  fix  qualifications  of  Representatives  in 

Congress. 
327-331.    Effect  of  votes  cast  for  ineligible  candidate. 
331a.  Effect  of  votes  cast  for  a  candidate  dying  on  day  of  election* 
328.    The  English  rule. 
328-330.    Not  generally  adopted  in  this  country. 

331.  Decision  of  United  States  Senate. 

332.  Effect  of  conviction  for  crime. 

333.  Effect  of  an  offer  by  candidate  for  office  in  the  nature  of  a  bribe, 

334.  Effect  of  absence  while  engaged  in  discharge  of  duties  of  public 

office. 

335.  Holding  an  incompatible  office. 
335,  336.    Incompatibility  defined. 

337.  Holding  an  office  under  the  United  States. 

338.  Effect  of  acceptance  of  commission  in  military  service  upon 

tenure  of  member  of  Congress. 
338, 339.    Effect  of  same  in  case  of  member  of  Congress  elected  but 

not  sworn  in. 
339a.  An  attorney  retained  in  a  particular  case  by  the  Attorney  Gen< 

eral  of  the  United  States  not  an  officer  of  the  United  State* 

340.  Acceptance  of  incompatible  office  equivalent  to  resignation. 
340a.  Effect  of  being  a  candidate  for  two  incompatible  offices  at  same 

election. 

341.  Lucrative  office. 

342.  Character  of  residence  required. 

843.    Election  of  alien  to  United  States  Senate  entirely  void. 
344.    Dueling  under  Constitution  of  Kentucky. 
344,  345.    Conviction  necessary. 

346.  Citizenship  necessary  whether  expressly  so  provided  or  nob 

347.  Legislature  cannot  add  to  constitutional  qualificationa 


244  ELECTIONS.  [chap.  XT. 

§  348.  Abandonment  of  an  oflSce. 
849-351.    Holding  over  until  successor  is  chosen  and  qualified. 

852.  Resignation,  acceptance  not  necessary. 

853.  Tenure  during  good  behavior. 
354  Right  to  hearing  before  removal. 

854.  Commission  of  crime  does  not  ipso  facto  vacate  office. 

855.  Power  of  removal 

856-358.    When  judicial  declaration  of  vacancy  is  necessary. 

359.  Vacancy  cannot  be  anticipated. 

360.  Vacancy  in  office  of  United  States  Senator. 

861.  Filling  such  vacancy  by  executive  appointment. 

862.  Member  of  Congress  may  resign  without  notice  to  the  House. 

863.  Declaration  of  vacancy  by  Governor. 

864.  Vacancies  that  may  happen  "during  recess  of  the  Senate." 

864,  Discussion  as  to  construction  of  Article  2,  Section  2,  Clause  2, 

Constitution  of  the  United  States. 

865.  Power  to  fill  vacancies  generally. 

365.  Construction  of  Article  1,  Section  3,  United  States  Constitution. 

366.  In  what  cases  Legislature  may  fill  offices. 

867.  Right  of  incumbent  to  fees  and  emoluments. 

868.  In  this  country  appointment  or  election  creates  no  contract  for 

any  particular  period. 

§  322.  The  qualifications  for  Federal  offices  are  fixed  by 
the  Federal  Constitution  or  Federal  law,  and  the  qualifica- 
tions for  State  offices  are  fixed  by  State  Constitutions  or 
State  laws.  It  is  not  competent  for  any  State  to  add  to  or 
in  any  manner  change  the  qualifications  for  a  Federal  office, 
as  prescribed  by  the  Constitution  or  laws  of  the  United 
States.  Nor  can  the  United  States  add  to  or  alter  the  qual- 
ifications for  a  State  office,  as  fixed  by  State  regulations. 

§  323.  The  Constitution  of  the  United  States  fixes  the 
qualifications  of  Eepresentatives  in  Congress  in  the  following 
words: 

"  No  person  shall  be  a  Eepresentative  who  shall  not  have 
attained  the  age  of  twenty-five  years  and  have  been  seven 
years  a  citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  inhabitant  of  that  State  in  which  he  shall  be 
chosen."  ^    A  State  law  requiring  that  a  Eepresentative  in 

1  Constitution,  Art.  1,  Sec.  2.  [The  record  of  a  court  admitting  a  per- 
son to  citizenship  is  conclusive  upon  Congress  in  a  contested  election, 
and  cannot  be  questioned  collaterally.    Cannon  v.  Campbell,  2  Ells.,  604.] 


CHAP.  XI.]  ELIGIBILITY.  245 

Congress  shall  reside  in  a  particular  town  and  county  within 
the  district  from  which  he  is  chosen  is  unconstitutional  and 
void.^ 

§  324.  It  will  be  seen  by  reference  to  the  Constitution  of 
the  United  States,  Article  1,  Sections  2  and  3,  that  no  per- 
son can  be  a  Eepresentative  "  who  shall  not,  when  elected,  be 
an  inhabitant  of  the  State  in  which  he  shall  be  chosen,"  and 
that  no  person  shall  be  a  Senator  who  shall  not,  "  when 
elected,  be  an  inhabitant  of  that  State  for  which  he  shall  be 
chosen."  The  meaning  of  the  term  "  inhabitant,"  as  employed 
in  these  provisions,  has  been  somewhat  discussed.  That  it 
was  intended  to  express  something  different  from  the  word 
"  resident "  is  apparent  from  the  fact  that  the  latter  word  was 
in  the  original  draft  of  the  Constitution,  and  was  stricken 
out  by  the  convention,  and  "inhabitant"  inserted.  It  would 
seem  that  the  framers  of  the  Constitution  were  impressed 
with  a  deep  sense  of  the  importance  of  an  actual  bona  jide 
residence  of  the  Eepresentative  among  the  constituency  —  a 
residence  in  the  sense  of  actual  living  among  them  and  com- 
mingling with  them, —  and  therefore  employed  the  term  "  in- 
habitant "  in  the  sense  of  living  or  abiding,  and  not  in  the 
sense  of  technical  residence.  This  view  of  the  subject  was 
sustained  in  an  elaborate  report  made  to  the  House  of  Repre- 
sentatives, in  1824,  in  case  of  John  Bailey  of  Massachusetts, 
who  was  elected  a  Eepresentative  from  that  State  while  he 
was  a  clerk  in  the  Department  of  State  at  Washington, 
D.  C,  and  temporarily  residing  in  that  city  while  in  the  dis- 
charge of  his  official  duties.  He  was  held  not  entitled  to 
the  seat.''  The  conclusion  reached  in  that  case  was  that  an 
inhabitant  of  a  State,  within  the  meaning  of  these  clauses  of 
the  Constitution,  is  one  who  is  bona  fide  a  member  of  the 
State,  subject  to  all  the  requisitions  of  its  laws,  and  entitled 
to  all  the  privileges  and  advantages  which  they  confer. 

§  325.  The  case  of  one  who  is  abroad,  representing  the 
government  at  a  foreign  Court,  was  held  to  be  different  from 

1  Barney  v.  McCreery,  CI.  &  H.,  167, 169. 

2  Electors  n  Bailey,  CI.  &  H.,  411. 


246  ELECTIONS.  [chap.  XI. 

that  of  a  person  employed  in  the  domestic  service  of  the 
government,  out  of  the  limits  of  his  own  State.  The  foreign 
representative  carries  with  him  the  sovereignty  of  the 
government  to  which  he  belongs ;  his  rights  as  a  citizen  are 
not  impaired  by  his  absence ;  children  born  in  the  house  he 
occupies  are  considered  as  born  within  the  territory  and 
jurisdiction  of  the  government  in  whose  service  he  is;  he 
does  not  possess  the  capacity,  by  residence  in  the  foreign 
country,  to  become  one  of  its  citizens,  or  to  lose  his  alle- 
giance to  the  country  from  which  he  comes.  Kone  of  these 
things  attach  to  those  persons  who  are  employed  in  the 
home  service  of  the  government.  It  was  accordingly  held  by 
the  Committee  of  Elections,  in  the  case  of  John  Forsyth  of 
Georgia,^  that  a  person  can  be  chosen  a  Representative  in 
Congress  while  absent  from  the  country,  as  a  minister  to  a 
foreign  Court,  and  that  this  case  did  not  conflict  with  the 
case  of  John  Bailey,  supra. 

§  326.  The  Constitution  of  Illinois  of  1848  provided  as 
follows : 

"  The  judges  of  the  Supreme  and  Circuit  Courts  shall  not 
be  eligible  to  any  other  office  or  public  trust  of  profit  in  this 
State,  or  the  United  States,  during  the  term  for  which  they 
are  elected,  nor  for  one  year  thereafter.  All  votes  for  either 
of  them  for  any  elective  ofiice  (except  that  of  judge  of  the 
Supreme  or  Circuit  Courts)  given  by  the  General  Assembly 
or  the  people  shall  be  void." 

The  House  of  Representatives  held  that  this  clause  of  the 
Constitution  of  Illinois,  so  far  as  it  related  to  the  election  of 
members  of  Congress,  was  void,  because  in  conflict  with  the 
Federal  Constitution,  and  also  because  it  was  an  unauthor- 
ized attempt  on  the  part  of  the  State  of  Illinois  to  fix  or  to 
change  the  qualifications  of  Representatives  in  Congress. 
Mr.  Marshall  and  Mr.  Trumbull  of  Illinois  were  elected  Rep- 
resentatives in  the  Thirty-fourth  Congress.  They  had  pre- 
viously been  elected,  respectively,  judge  of  the  Supreme  and 
Circuit  Court  of  that  State,  for  terms  which  had  not  expired. 

lCa.&H.,497. 


CHAP.  XI.]  ELIGIBIUTT.  347 

This  was  held  to  be  no  objection  to  their  holding  the  ofBce 
of  Representative  in  Congress.^  The  United  States  Senate 
adopted  the  same  rule  in  Trumbull's  case.'^ 

§  327.  We  come  now  to  a  question  which  has  been  much 
discussed,  and  upon  which  the  authorities  are  somewhat 
conflicting;  it  is  this:  suppose  the  candidate  who  has  re- 
ceived the  highest  number  of  votes  for  an  office  is  ineligible, 
and  that  his  ineligibility  was  known  to  those  who  voted  for 
him  before  they  cast  their  votes,  are  the  votes  thus  cast  for 
him  to  be  thrown  out  of  the  count,  and  treated  as  never  cast, 
and  should  the  minority  candidate,  if  eligible,  be  declared 
elected  in  such  a  case  ?  ^  No  doubt  the  English  rule  is,  that 
where  the  majority  candidate  is  ineligible,  and  sufficient  no- 
tice of  his  ineligibility  has  been  given,  the  person  receiving 
the  next  highest  number  of  votes,  being  eligible,  must  be 
declared  elected.  Great  stress  is  laid  upon  the  fact  of  notice 
having  been  given,  and  the  reason  of  the  English  rule  is  said 
to  be  "  that  it  is  wilful  obstinacy  and  misconduct  in  a  voter 
to  give  his  vote  for  a  person  laboring  under  a  Tcnown  incom- 
petency." *  An  examination  of  the  English  cases  will  show 
that  in  some  of  them  the  election  was  declared  void,  and  sent 
back  to  the  people,  on  the  ground  that  there  was  not  suffi- 
cient notice  of  the  incapacity  of  the  successful  candidate, 
while  in  others  the  minority  candidate  was  declared  elected, 
on  the  ground  that  due  notice  of  the  ineligibility  of  the 
person  receiving  the  majority  was  given.  Some  of  the 
principal  English  authorities  upon  the  subject  are  cited  in 
the  note.' 

iTurney  v.  Marshall,  1  Bart,  167;  Fouke  v.  Trumbull,  1  Bart,  167; 
[Wood  V.  Peters,  Mob.,  79]. 

21  Bart.,  619. 

3  Where  the  candidate  receiving  the  majority  is  ineligible  for  a  cause 
not  known  to  the  voters,  there  must  be  a  new  election.  Dry  den  v. 
Swinburne,  20  W.  Va.,  89;  Swepston  u  Barton,  39  Ark,  549. 

*  South  wark  on  Elections,  p.  259. 

6  Rex  V.  Monday,  Cowp.,  537;  Rex  v.  Coe,  Hey  wood,  361 ;  Rex  v.  Bissell, 
Id.,  360;  Rex  u  Parry,  14  East,  549;  Regina  v.  Coaks,  28  Eng.  L.  and  Eq., 
804;  S.  C,  7  Q.  B.,  406;  Hey  wood  on  County  Elections,  535;  Male  on 


248  ELECTIONS.  [chap.  XI. 

§  328.  Although  the  law  of  the  British  Parliament,  as 
well  as  that  administered  in  the  courts  of  that  country, 
recognizes  the  rule  as  laid  down  in  the  cases  just  cited,  the 
House  of  Representatives  of  the  United  States  has  refused  to 
adopt  it.  See  the  case  of  Smith  v.  Brown^  in  which,  in  an 
able  report,  submitted  by  Mr.  Dawes,  chairman  of  the  Com- 
mittee of  Elections,  the  authorities  are  reviewed,  and  the 
conclusion  is  reached, "  that  the  law  of  the  British  Parliament, 
in  this  particular,  has  never  been  adopted  in  this  country, 
and  is  wholly  inapplicable  to  the  system  of  government 
under  which  we  live."  And  the  courts  of  this  country  gener- 
ally take  the  same  view. 

§  329.  Thus,  in  Commonwealth  v.  Cluley^  the  Supreme 
Court  of  Pennsylvania  held  that  where,  at  an  election  for 
sheriff,  a  majority  of  the  votes  are  cast  for  a  disqualified 
person,  the  next  in  vote  is  not  to  be  returned  as  elected ;  and 
the  Supreme  Court  of  California,  in  Saunders  v.  Haynes^ 
holds  the  same  doctrine  and  enforces  it,  by  cogent  reasoning. 
And  in  Wisconsin  we  have  the  same  ruling  in  State  v, 
Giles*'  and  in  State  v.  Smith; *  and  see  Opinion  of  Judges,^ 
State  V.  Boal^  State  v.  Yail^  State  v.  Anderson^  People  v. 
Glute^^  [and  In  re  Corliss'}}^  But  in  Indiana  the  doctrine  of 
the  English  authorities  has  been  followed,^^  in  Carson  v.  Mc- 

Elections,  336;  King  v.  Hawkins,  10  East,  210;  Claridge  v.  Evelyn,  5  B. 
&  A.,  8;  Clarke  on  Election  Committees,  p.  156;  South wark  on  Eleo 
tions,  p.  259. 

1 2  Bart.,  395.    [And  see,  also,  Cannon  v.  Campbell,  2  Ells.,  604] 

2  56  Pa.  St.,  270. 

» 13  Cal.,  145. 

*  1  Chand.,  113. 

s  14  Wis.,  497. 

6  32  Maine,  597. 

7  46  Mo.,  528. 

8  53  Mo.,  97;  Cushing,  Elec.  Caa,  496, 678, 
» 1  Coxe  (N.  J.),  3ia 

10  50N.  Y.,45. 

"  [11  R  L,  638.] 

WGulick  V.  New,  14  Ind.,  93L 


€HAP.  XI.]  ELIGIBILITY.  249 

Phetridge^  Price  v.  Baker ^  [and  Coj>e  v.  State ;Y  and  see 
Stewart  v.  Hoges,  in  Circuit  Court  of  Stephenson  County, 
Illinois.* 

§  330.  Thus,  it  will  be  seen  that  the  weight  of  authority 
in  this  country  is  decidedly  against  the  adoption  here  of  the 
English  doctrine.  And  we  think  that  sound  policy,  as  well 
as  reason  and  authority,  forbids  the  adoption  of  that  doctrine 
in  this  country.  It  is  a  fundamental  idea  with  us  that  the 
majority  shall  rule,  and  that  a  majority,  or  at  least  a  plurality, 
shall  be  required  to  elect  a  person  to  office  by  popular  vote. 
An  election  with  us  is  the  deliberate  choice  of  a  majority  or 
plurality  of  the  electors.  Any  doctrine  which  opens  the 
way  for  minority  rule  in  any  case  is  anti-republican  and 
anti- American.  The  English  rule,  if  adhered  to,  would  in 
many  cases  result  in  compelling  very  large  majorities  to  sub- 
mit to  very  small  minorities,  as  an  ineligible  person  may 
receive,  and  in  many  cases  has  received,  a  great  majority  of 
the  votes.  It  is  enough,  in  such  a  case,  to  hold  the  election 
void."^ 

§  331.  This  question  was  elaborately  discussed  and  set- 
tled, so  far  as  the  Senate  of  the  United  States  is  concerned, 
in  the  case  of  Joseph  C.  Abbott,  of  ISTorth  Carolina.  The 
decision  of  that  case  was  against  the  adoption  of  the  Eng- 
lish rule  in  this  country,  and  Abbott,  who,  notwithstanding 
he  received  only  a  minority  of  the  votes  cast,  claimed  a  seat, 
upon  the  ground  that  he  was  the  only  eligible  person  voted 
for,  was  declared  not  elected.  And  it  was  distinctly  asserted, 
in  the  report  of  the  committee,  that  the  fact  that  the  voters 
have  notice  of  the  ineligibility  of  the  candidate  at  the  time 
they  cast  their  votes  for  him  makes  no  difference.  The  re- 
mark of  Judge  Strong,  in  Commonwealth  v.  Cluleij^  that 

1 15  Ind.,  327. 

2  41Ind.,  572. 

« [126  Ind.,  51.] 

*3  Chicago  Legal  News,  117. 

5[Lowry  v.  White,  Mob.,  62a] 

*  Supra. 


250  ELECTIONS.  [chap.  XI. 

"  the  disqualified  person  is  a  j>erson  stilly  and  every  vote 
thrown  for  him  is  formal,"  is  quoted  with  approbation.  The 
broad  doctrine  was  asserted  that  in  this  country  an  election, 
by  a  minority  of  the  persons  voting,  is  not  to  be  tolerated 
under  any  circumstances.  Mr.  Carpenter,  from  the  minor- 
ity of  the  committee,  submitted  an  elaborate  report  main- 
taining the  right  of  Mr.  Abbott  to  the  seat,  and  the  debate 
was  exhaustive,  but  the  Senate  sustained  the  majority  of  the 
committee.* 

[§  331a.  The  Supreme  Court  of  Kentucky  in  Howes  v. 
Perry "^  applied  this  rule  to  the  following  case:  The  appel- 
lant and  one  Bayes  were  candidates  for  the  same  office. 
Bayes  died  on  the  afternoon  of  the  election  before  the  polls 
had  closed.  The  count  showed  that  Bayes  had  received  a 
majority  of  the  votes  cast,  but  it  was  impossible  to  deter- 
mine how  many  votes  had  been  cast  for  him  at  the  time  of  his 
death.  The  Court  in  passing  upon  appellant's  claim  to  the 
office  held  that  he  was  not  the  choice  of  a  majority  of  the 
qualified  voters  who  had  cast  their  votes  in  good  faith  at 
the  election  and  that  he  was  not  entitled  to  a  certificate  of 
election.] 

§  332.  The  Supreme  Court  of  Pennsylvania  has  held  that 
the  trial  and  conviction  of  a  sheriff  of  the  offense  of  bribing 
a  voter,  previously  to  his  election,  does  not  constitutionally 
disqualify  him  from  exercising  the  duties  of  his  office,  be- 
cause it  is  not  a  conviction  of  "  any  infomious  crime,"  within 
the  meaning  of  the  Constitution  of  that  State.^  In  the 
opinion  in  this  case  will  be  found  an  elaborate  discussion  of 
the  meaning  of  the  term  "infamous  crime,"  and  a  refer- 
ence to  many  authorities  upon  that  subject.  It  was  held 
that  infamous  crimes  are  treason,  felony,  and  every  species 
of  the  crimen  falsi,  such  as  forgery,  perjury,  subornation  of 
perjury,  etc.* 

J  Senate  Rep.  No.  58,  42d  Congress,  Second  Session. 

2  [92  Ky.,  260.] 

3  Commonwealth  v.  Shaver,  3  W.  &  S.,  388;  S.  C,  Bright.  Elec.  Gas., 
134 

<  See  ante,  §§  108-111.    [In  the  opinion  of  the  Supreme  Court  of  the 


CHAP.  XI,]  ELIGIBILITY.  251 

§  333.  While  it  is  now  well  settled  that  an  offer  by  a 
candidate  for  office  to  discharge  the  duties  for  less  than  the 
lawful  salary  or  compensation  is  in  the  nature  of  a  bribe, 
and  vitiates  all  the  votes  influenced  by  such  offer,  yet  it  has 
been  held  that  the  person  making  the  offer  is  not  thereby 
rendered  ineligible  to  hold  the  office  in  the  absence  of  a  con- 
stitutional or  statutory  provision  declaring  such  ineligibil- 
ity.* It  was  therefore  held  that,  in  order  to  oust  the  in- 
cumbent of  an  office  on  this  ground,  it  was  necessary  to 
show  that  the  number  of  votes  in  his  favor  cast  under  the 
influence  of  such  promise  was  greater  than  the  majority  re- 
ceived by  him.  The  rule  that  a  disqualification  to  hold 
office  on  account  of  having  committed  an  offense  against  the 
law,  or  public  morals,  must  be  declared  by  constitutional  or 
statutory  provision  is  believed  to  be  well  settled.  In  Eng- 
land, and  in  many  of  the  States  of  the  Union,  it  is  expressly 
provided  by  law  that  bribery  in  procuring  an  office  creates 
a  disability  to  hold  it.  Such  is  the  case  especially  in  Iowa, 
in  Kansas,  in  Oregon  and  in  Wisconsin,  and  this  fact  should 
be  kept  in  view  in  considering  decisions  based  upon  the  laws 
of  those  States,  some  of  which  have  been  referred  to.^ 

§  334.  The  acceptance  for  a  term  of  years  of  an  office, 
the  duties  of  which  require  the  incumbent  to  reside  outside 
the  limits  of  a  given  place,  does  not  necessarily  render  him 

United  States  an  infamous  crime  is  one  which  subjects  the  offender  to 
an  infamous  punishment,  as,  for  example,  imprisonment  in  the  peniten- 
tiary. Ex  parte  Wilson,  114  U.  S.,  417;  Mackin  v.  United  States,  117 
U.  S.,  348,] 

1  People  V.  Thornton,  25  Hun  (N.  Y.),  456. 

2  Upon  the  general  subject  of  selling  offices  and  of  the  bidding  for 
offices  see  the  following  cases:  Hall  v.  Gavitt,  18  Ind„  390;  Carrothers  v. 
Russell,  63  Iowa,  346;  State  v.  Purdy,  36  Wis.,  313;  Walsh  v.  The  People, 
66  111.,  58;  State  v.  Dustin,  5  Oreg.,  375;  State  v.  Collier,  73  Mo.,  12;  S.  C, 
18  Am,  Law  Reg.  (N.  S.),  768;  State  v.  Stevens,  33  Kan.,  456;  Tucker  v. 
Aiken,  7  N.  H.,  113;  Carleton  v.  Whitcher,  5  Id.,  196;  Meredith  v.  Ladd, 
3  Id,,  517;  Alvord  v.  Collin,  20  Pick.,  418;  King  v.  Plympton,  2  Lord 
Raym.,  1377;  Rex  v.  Vaugh,  4  Burr.,  2494;  Waldo  v.  Martin,  2  Carr.  & 
Payne,  1. 


253  ELECTIONS.  [chap.  XI. 

ineligible  to  another  office,  one  of  the  qualifications  of  which 
is  residence  within  such  place.  If  the  office  accepted  is  for 
life,  the  law  presume  that  upon  its  acceptance  the  incum- 
bent elects  to  make  his  residence  permanently  where  its 
duties  are  to  be  discharged;  but  if  it  be  an  office  only  for  a 
term  of  years,  or  for  an  indefinite  period,  the  presumption  is 
that  no  change  of  residence  is  intended,  and  none  of  the 
rights  or  privileges  of  his  residence  are  lost  by  the  accept- 
ance of  it.* 

§  335.  Whether  the  incumbent  of  one  office  becomes  dis- 
qualified by  accepting  another  depends  upon  the  question 
whether  the  law  forbids  the  holding  of  the  two  offices  by  the 
same  person,^  and  if  not,  then  upon  the  further  question 
whether  the  functions  and  duties  of  the  two  offices  are  in- 
compatible. 

The  incompatibility  between  two  offices  which  upon  the 
acceptance  of  the  one  by  the  incumbent  of  the  other  operates 
to  vacate  the  latter  is  not  simply  the  physical  impossibility 
to  discharge  the  duties  of  both  offices  at  the  same  time ;  but 
it  is  an  inconsistency  of  the  functions  of  the  two  offices,  as 
where  one  is  subordinate  to  the  other,  or  where  a  contrariety 

1  Commonwealth  v.  Jones,  12  Pa.  St.,  365. 

2  [United  States  v.  Saunders,  120  U.  S.,  126.  An  act  of  the  Legislature 
making  it  the  duty  of  a  sheriff  of  a  certain  county  to  discharge  the  du- 
ties of  city  marshal  in  a  certain  town  is  not  obnoxious  to  a  clause  of 
the  Constitution  which  provides  that  "  no  person  shall  hold  or  perform 
the  functions  of  more  than  one  office  under  the  government  of  the 
State  at  the  same  time."  Attorney-General  v.  Connors,  27  Fla.,  329.  By 
the  laws  of  the  State  of  New  Hampshire  the  oflSces  of  selectman  and 
collector  of  taxes  are  incompatible.  It  has  been  held  in  that  State  that 
a  collector  of  taxes  of  a  previous  year  who  has  not  completed  the  col- 
lection of  taxes  on  his  list,  nor  been  discharged  from  liability  to  the 
town  as  collector,  is  within  the  prohibition  and  disqualified  to  hold  the 
office  of  selectman.  Attorney-General  v.  Marston,  66  N.  H.,  485.  But 
in  North  Carolina  there  is  a  decision  "  that  where  the  statute  imposes 
certain  duties  to  be  performed  by  an  officer  after  the  expiration  of  the 
term  of  office,  their  performance  does  not  constitute  a  place  or  office  of 
trust  or  profit  so  as  to  disqualify  the  former  officer  from  holding  another 
office  at  the  same  time."    State  v.  Somers,  96  N.  C,  467.] 


CHAP.  XI.]  ELIGIBILITY.  253 

and  antagonism  would  result  from  the  attempt  of  one  person 
to  faithfully  and  impartially  discharge  the  duties  of  both.^ 

§  336.  If  there  is  a  statutory  or  constitutional  provision 
prohibiting  the  same  person  from  holding  both  offices  at  the 
same  time,  then  of  course  the  question  of  their  incompati- 
bility does  not  necessarily  arise ;  ^  for  in  such  a  case  the  ac- 
ceptance of  the  second  is  ipso  facto  the  abandonment  and 
resignation  of  the  first,  though  the  duties  of  the  two  may  be 
entirely  compatible.  But  if  the  statute  and  constitution  are 
silent  upon  the  subject,  then  the  question  whether  the  two 
offices  can  be  held  at  the  same  time  by  the  same  person  de- 
pends upon  their  compatibility.* 

§  337.  The  sixth  section  of  the  first  article  of  the  Consti- 
tution of  the  United  States  provides  that "  no  person  holding 
any  office  under  the  United  States  shall  be  a  member  of 
either  House  during  his  continuance  in  office."  Under  this 
provision  it  has  been  frequently  held  that  the  acceptance  of 
a  commission  as  an  officer  of  volunteers  in  the  United  States 
army  is  the  acceptance  of  an  office  under  the  United  States, 
and  that  the  acceptance  of  such  commission  by  a  member  of 
Congress  vacates  his  seat.*  While  it  is  true  that  the  com- 
missions of  officers  of  volunteers  are  ordinarily  issued  b}'-  the 
State  authorities,  it  does  not  follow  that  they  are  State  offi- 
cers. They  serve  the  United  States,  they  are  paid  by  the 
United  States,  and  subject  to  the  orders  of  the  President. 
They  are  responsible  only  to  Federal  authority  for  the  faith- 
ful performance  of  their  duties.  These  tests  show  them  to 
be  officers  of  the  United  States. 

§  338.  But  an  important  question  has  arisen,  as  to  whether 
a  member  of  Congress  elect,  who  has  not  yet  been  qualified 
as  such,  may  be  an  officer  of  volunteers.    In  the  case  of 

1  People  V.  Green,  58  N.  Y.,  296. 

2  [Adam  v.  Mengel  (Pa.),  8  Atl.  Rep.,  606.] 

3  [State  V.  Goff,  15  R  L,  505.] 

*Case  of  Van  Ness,  CI.  «&  H.,  132;  Cases  of  Baker  and  Yell,  1  Bart,  92; 
Byington  v,  Vandever,  Id.,  395;  Stanton  v.  Lane,  Id.,  637. 


254  ELECTIONS.  [chap.  XI. 

Robert  C.  Schenck,  of  Ohio,  this  identical  question  arose  in 
the  House  of  Representatives  of  the  thirty-eighth  Congress, 
In  that  case  it  was  held  that  if  a  "member  of  Congress, 
after  he  has  qualified  or  entered  upon  the  discharge  of  his 
duties  as  such  member^  accepts  or  enters  upon  the  discharge 
of  any  office  under  the  United  States,  he,  ijpso  facto,  vacates 
or  forfeits  his  seat  as  a  member  of  Congress."  Gen.  Schenck 
was  elected  to  the  thirty-eighth  Congress  in  October,  1862. 
That  Congress  did  not  organize  until  December,  1863.  On 
the  16th  of  March,  1863,  he  was  commissioned  a  Major 
General  of  volunteers,  and  entered  upon  the  discharge  of 
his  duties  as  such,  but  resigned  prior  to  the  meeting  of  Con- 
gress in  December,  1863,  and  did  no  act  as  a  Representative 
in  Congress  and  indicated  no  acceptance  of  it,  until  after  his 
resignation  as  Major  General,  nor  until  the  meeting  of  Con- 
grese  at  the  time  above  named. 

§  339.  The  case  of  Gen.  Blair,  of  Missouri,  decided  at 
the  same  time,  was  precisely  similar  to  that  of  Gen.  Schenck 
in  all  respects  except  one.  Gen.  Blair  continued  to  exercise 
the  functions  of  the  office  of  Major  General  after  Congress 
met  and  organised,  having  resigned  his  commission  January 
1,  1864,  in  order  to  take  his  seat  in  the  House.  The  two 
cases  were  alike  in  this:  each  held  another  office  under  the 
United  States  after  his  election  to  the  thirty-eighth  Con- 
gress, and  after  the  legal  existence  or  constitutional  term  of 
that  Congress  commenced,  to- wit,  March  4,  1863;  they  were 
unlike  in  this:  Gen.  Schenck  resigned  his  commission  in  the 
army  before  Congress  met,  and  consequently  before  he  had 
an  opportunity  to  elect  between  the  two  offices,  whilst  Gen. 
Blair  continued  to  hold  his  commission  in  the  army  and  to 
exercise  his  functions  under  it,  after  Congress  met  and  after 
he  had  such  option  or  election.  Because  of  this  important 
difference  between  the  two  cases,  the  seat  of  Gen.  Blair  was 
declared  vacant,  while  that  of  Gen.  Schenck  was  declared  not 
vacant.  So  far  as  Gen.  Schenck's  case  was  concerned  the 
question  presented  had  been  previously  decided  by  the  House, 


CHAP.  XI.]  ELIGIBILITY.  255 

it  having  been  held  that  a  person  may  continue  to  exercise 
the  functions  of  an  office  under  the  United  States,  after  he  is 
elected  a  member  of  Congress,  and  after  the  constitutional 
term  of  Congress  commences,  and  prior  to  his  taking  his 
seat.*  But  Gen.  Blair's  case  presented  a  new  question.  An 
able  and  interesting  report  upon  these  two  cases  was  made 
from  the  committee  of  elections,  by  its  chairman,  the  Hon. 
Henry  L.  Dawes,  of  Massachusetts.  *  From  this  report, 
which  contains  an  elaborate  discussion  of  the  whole  subject, 
it  is  deemed  proper  here  to  quote  as  follows: 

"The  authorities  are  equally  clear  that  the  mere  appoint- 
ment or  election  to  an  office,  the  duties  of  which  are  incom- 
patible with  those  of  one  already  held,  will  not  vacate  such 
office.  This  is  true  even  in  England,  where  the  appointment 
to  office  can  not  always  be  avoided,  and  where  once  assumed 
it  can  not,  as  we  have  seen,  be  always  voluntarily  resigned 
by  the  incumbent.'  And  in  this  country,  where  the  accept- 
ance of  office  is  purely  voluntary,  and  its  resignation  equally 
so,  the  reason  of  the  thing  as  well  as  authority  clearly  leads 
to  the  same  conclusion.  The  incumbent  is  free  to  choose  in 
which  of  the  two  offices  he  will  serve.  He  can  not  be 
compelled  to  serve  in  the  one  or  forced  to  vacate  the  other, 
except  in  some  manner  provided  in  its  tenure.  The  mere 
appointment  or  election  to  one  office,  unaccompanied  with 
consent  or  acceptance,  can  not  force  a  man  out  of  an  office 
he  already  holds.  Anciently  it  was  tried  in  England.  A 
man  who  was  town  clerk  was  elected  alderman  without  his 
consent,  in  order  to  turn  him  out  of  his  former  office,  they 
being  incompatible,  and  thereupon  he  prayed  a  writ  of 
restitution  to  the  office  of  town  clerk,  which  was  granted.* 
So  that  consent  and  acceptance  create  the  vacancy.  And 
Willcock,    in    his    Treatise   upon   Municipal   Corporations, 

1  Hammond  v.  Herreck,  CI.  &  H.,  287 ;  Case  of  Elias  Earle,  Id.,  814. 
»  Report  No.  110,  1st  Sess.  Thirty-eighth  Congress. 
»  "Willcock  on  Mun.  Corp.,  243,  248. 
*  Dyer,  332,  6,  in  the  notes. 


256  ELECTIONS,  [chap.  XI. 

before  cited,  states  that  the  election  of  an  officer  to  an 
incompatible  office  does  not  vacate  the  former  before  accept- 
ance by  the  officer.  *  In  this  country,  Angel  and  Ames  in 
their  work  on  Corporations^^  adopt  this  same  language,  and 
incorporate  it  into  the  text  of  their  treatise.  In  Whitney  v. 
Canique,  before  cited,  ^  the  same  doctrine  is  clearly  stated  in 
the  following  words:  '  The  appointment  of  a  person  to  a 
second  office  incompatible  with  the  first  is  not  absolutely 
void,  but  on  his  subsequently  accepting  the  appointment  and 
qualifying,  the  first  office  is  ipso  facto  vacated/  And  Mr. 
Gushing,  in  his  Law  and  Practice  of  Legislative  Assemhlies,^ 
lays  down  the  same  rule,  in  stating  a  case  which  is  the  con- 
verse of  the  one  involved  in  this  reference.  He  says:  '  It 
may  be  considered  as  a  rule  founded  in  the  reason  of  tlie 
thing,  and  corresponding  with  the  practice,  as  far  as  it  is 
known,  of  all  our  legislative  assemblies,  that  in  order  to 
vacatt  the  seat  of  a  member  by  the  acceptance  of  the 
disqualifying  or  incompatible  office,  the  election  or  appoint- 
ment thereto  alone  is  not  sufficient,  but  the  member  must 
either  have  signified  his  acceptance  of  the  office  in  a  formal 
manner,  or  have  done  what  is  incumbent  on  him  to  qualify 
him  to  discharge  its  duties,  or  have  actually  entered  upon  its 
discharge.' 

"  The  common  law  has  been  shown  to  be  clear  that  the 
election  alone  to  an  incompatible  office  will  not  vacate  one 
already  held.  The  language  of  the  Constitution  is,  that  '  no 
person  holding  any  office  under  the  United  States,  shall  be  a 
member  of  either  House  during  his  continuance  in  office.' 
The  words  are,  '  shall  be  a  member,^  not  '  shall  be  elected.' 
No  one  can  be  made  a  'member'  against  his  will.  He  may 
be  elected  without  his  consent  or  knowledge,  for  he  may  be 
in  a  foreign  land;  but  to  'become  a  member'  he  must  not 

»P.243. 

•  Sec.  434. 
» 2  Hill,  9i 

*  Sec.  479. 


CHAP.  XI.]  ELIGIBILITT.  267 

only  be  elected,  but  he  must  take  the  oath  of  office.  The 
Constitution  says:  'Each  house  shall  be  the  judge  of  the 
elections,  returns,  and  qualifications  of  its  own  Tnembers;^ 
that  is,  of  those  who  have  qualified  and  taken  seats.  Again: 
*  A  majority  of  each  shall  constitute  a  quorum,  but  a  smaller 
number  may  adjourn  from  day  to  day,  and  may  be  authorized 
to  compel  the  attendance  of  absent  members.^  But  the 
attendance  of  a  representative  elect  was  never  yet  compelled. 
And,  again :  '  Each  house  may  determine  the  rules  of  its 
proceedings,  punish  its  Tnembers  for  disorderly  behavior,  and 
with  the  concurrence  of  two-thirds,  expel  a  member.^  The 
committee  are  not  aware  of  any  attempt  to  punish  a  repre- 
sentative elect,  and  of  but  one  instauce  of  an  attempt  to  expel 
one.  A  resolution  was  adopted  by  the  last  House,  under  the 
previous  question,  to  expel  a  person  who  was  a  representative 
elect,  but  had  never  signified  his  acceptance  of  the  oifice,  or 
qualified,  or  even  appeared  in  Washington  for  the  purpose  of 
taking  his  seat.  But  when  the  Constitution  uses  the  word 
^ rejpresentatvce^  it  is  in  this  connection:  'The  times,  places, 
and  manner  of  holding  elections  of  Senators  and  Rejpresenta- 
tiveSj  shall  be,'  etc.  '  No  person  shall  be  a  Representative 
who  shall  not  have  attained  to  the  age  of  twenty-five  years.' 
In  the  clause  now  under  consideration,  the  language  is: 
'  No  person  holding  any  ofiice  under  the  United  States  shall 
be  a  member  of  either  House  during  his  continuance  in 
office.'  No  one  doubts  that  the  object  of  the  constitutional 
inhibition  was  to  guard  the  House  against  Executive  influ- 
ence. This  object  is  attained,  so  far  as  it  can  be  by  this 
provision,  if  the  inhibition  attaches  the  moment  the  member 
enters  upon  the  discharge  of  his  duties  as  such,  and  nothing 
is  gained  by  an  earlier  application  of  it. 

"  The  committee  are,  therefore,  of  opinion  that  the  reasons 
in  which  this  constitutional  provision  originated,  as  well  as 
its  express  language  and  the  practice  of  the  House  under  it, 
are  in  harmony  with  the  rule  of  law  which  existed  before  the 
formation  of  the  Constitution,  that  the  acceptance  and  enter- 


258  ELEOTIONB.  [OHAP.  XI. 

ing  upon  the  discharge  of  the  duties  of  an  office,  which,  from 
the  nature  of  its  duties,  or  from  express  legal  or  constitu- 
tional prohibition,  is  incompatible  with  another  previously 
held,  vacated  the  former  office  from  the  time  of  such 
acceptance  and  entering  upon  the  duties  assigned  to  the 
latter  office. 

"And,  consequently,  when  a  person  elected  to  Congress 
accepts  that  office,  or  qualifies  and  enters  upon  the  discharge 
of  its  duties,  he  vacates  or  forfeits  any  office  he  may  then 
hold  under  the  United  States,  and  when  any  member  of 
Congress,  after  he  has  qualified  or  entered  upon  the  discharge 
of  his  duties  as  such  member,  accepts  or  enters  upon  the 
discharge  of  the  duties  of  '  any  office  under  the  United  States,* 
he,  ipso  factOy  vacates  or  forfeits  his  seat  as  a  member  of 
Congress." 

"But  this  record  raises  another  question  which,  so  far  as 
the  committee  can  learn,  has  not  before  arisen,  and  which  it 
becomes  necessary  to  examine.  Mr.  Blair  was  appointed  a 
Brigadier  General,  August  7,  1862,  and  a  Major  General, 
Kovember  29,  1862,  the  duties  of  which  latter  office  he  dis- 
charged till  January  1,  1864,  when  he  tendered  his  resigna- 
tion, which  was  accepted  January  12,  1864.  On  this  latter 
day  he  was  qualified,  and  took  his  seat  in  the  House  of 
Representatives.  The  first  regular  session  of  the  thirty- 
eighth  Congress,  fixed  by  law,  commenced  on  the  first  Mon- 
day of  December,  1863.  It  therefore  appears  that  Mr.  Blair 
held  and  discharged  the  duties  of  the  office  of  Major  General 
for  more  than  a  month  after  the  commencement  of  the  session 
fixed  by  law  of  the  Congress  in  which,  after  resigning  that 
office,  he  subsequently  took  his  seat.  Now,  if  the  reasoning 
already  submitted,  and  the  conclusions  which  the  committee 
have  drawn  therefrom,  be  correct,  viz.,  that  the  acceptance  of 
an  office  incompatible  with  one  already  held  must  be  deemed 
and  treated  as  the  resignation  of  the  former,  then  does  it  not 
follow  that  the  continuance  in  the  discharge  of  the  duties  of 
the  former  office,  after  the  time  at  which  the  law  requires  the 


CHAP.  XI.]  ELIGIBILITT.  259 

entering  upon  and  discharge  of  the  incompatible  duties  of  the 
latter,  must  be  deemed  and  treated  as  a  declination  of  this 
office  ?  If  two  offices  are  tendered  at  the  same  time  to  the 
same  person,  and  he  is  at  liberty  to  choose  between  the  two, 
but  either  the  nature  of  the  offices,  or  the  requirements  of 
the  law  or  Constitution,  forbid  the  acceptance  of  both,  no  one 
will  doubt  but  that,  after  an  election  between  them  is  made 
and  the  duties  of  one  have  been  entered  upon,  it  is  too  late 
then  to  take  the  other.  As  both  can  not  be  taken,  the  one  is 
declined  in  the  acceptance  of  the  other.  Does  the  fact  that 
these  two  offices  are  tendered  at  the  same  time,  make  any 
diffisrence  in  the  principle  ?  A  man  in  the  discharge  of  the 
duties  of  one  office  is  tendered  another,  whose  duties  he  is 
required  to  enter  upon  at  a  certain  time,  but  the  functions  of 
both  he  can  not  perform.  When  the  time  arrives  at  which 
the  duties  of  the  latter  office  commence,  he  is  at  liberty  to 
choose.  If  he  takes  the  latter,  the  functions  of  the  former, 
ipso  facto  ^  cease  as  the  result  of  his  choice.  If  he  determines 
to  continue  to  hold  the  former,  does  he  not  of  necessity  de- 
cline the  latter,  as  a  like  result  of  that  choice  %  "When  he 
accepts  one  office,  the  law  interprets  the  act  as  a  surrender  of 
any  incompatible  office.  Shall  it  not  put  a  like  interpreta- 
tion upon  a  continuance  to  discharge  the  duties  of  the  other  % 
If  he  may  be  permitted  to  keep  vacant  the  one  office  one 
month  by  continuing  in  the  incompatible  one  during  that 
time,  he  may  two  or  twelve,  or  during  its  whole  term.  If 
those  acts  are  not  to  be  taken  as  an  election  on  his  part,  then 
that  election  is  yet  to  be  made;  and  what  interposes  to  re- 
quire it  to  be  made  till  the  day  before  the  term  expires,  or 
then?  And  thus  may  the  people  of  any  district,  or  any 
number  of  districts,  be  deprived  altogether  of  representation. 
The  committee  can  not  arrive  at  any  conclusion  fraught  with 
such  results,  but  are  of  opinion  that,  when  the  time  arrives 
at  which  the  duties  of  two  incompatible  offices  are  by  law  to 
be  discharged,  a  man  at  liberty  to  choose  between  the  two,  as 
effectually  declines  one  not  entered  upon,  by  continuing  in 


260  ELECTIONS.  [chap.  XI. 

the  one  already  held,  as  he  would  vacate  the  former  if  he 
did  enter  upon  the  latter. 

"  It  therefore  follows  that  Mr.  Blair,  by  voluntarily  con- 
tinuing to  hold  and  discharge  the  duties  of  the  office  of 
Major  General  till  January,  1864,  declined  and  disqualified 
himself  for  the  office  of  Representative,  the  duties  of  which, 
by  law,  commenced  on  the  first  Monday  of  the  December 
preceding. 

[§  339a.  In  the  case  of  Massey  v.  Wise^  it  was  held  that 
an  attorney  who  is  employed  or  retained  by  the  Attorney- 
General  of  the  United  States  to  assist  in  a  given  case  or 
cases,  and  for  a  compensation  to  be  fixed  by  the  Attorney- 
General,  does  not  hold  an  office  within  the  meaning  of  Arti- 
cle 1,  Section  6,  of  the  Constitution,  and  is  not  disqualified 
on  that  account  from  holding  the  office  of  Representative  in 
Congress.] 

§  340.  A  person  who  held  a  Federal  office  after  being 
elected  to  Congress,  but  who  had  ceased  to  discharge  its 
duties  before  taking  his  seat  as  a  member  of  Congress,  is 
qualified  for  the  latter  office  without  having  formally  re- 
signed the  former.^  And  there  can  be  no  doubt  but  that 
the  accepting  of  the  office  of  Representative  in  Congress 
and  entering  upon  the  discharge  of  its  duties  amounts  to  a 
resignation  and  abandonment  of  any  incompatible  office 
previously  held,  and  hence  a  formal  resignation  is  not  neces- 
sary in  any  such  case.  Acceptance  by  an  officer  of  a  second 
and  incompatible  office  i^pso  facto  vacates  the  first  office,  and 
no  proceedings  to  declare  a  vacancy  are  necessary.' 

[§  340a.  The  rule  which  disqualifies  one  from  holding 
two  incompatible  offices  at  the  same  time  does  not  prohibit 
a  person  from  becoming  a  candidate  or  being  voted  for,  for 
two  incompatible  offices  at  the  same  election.    Should  he  be 

1  [Mobi,  365.] 

a  Case  of  George  Mumf  ord,  CL  &  H.,  316L 

8SheU  V.  Cousins,  77  Va.,  328;  State  v.  Dell  wood,  88  La.  Annu,  1229^ 
State  V.  West,  Id,,  1261. 


CHAP.  XI.]  ELIGIBILITY.  261 

elected  to  but  one  of  the  offices  for  which  he  was  a  candi- 
date, the  votes  electing  him  would  not  be  invalid  because 
another  portion  of  the  voters  saw  fit  to  vote  for  him  for  the 
other.  If  elected  to  both  offices  he  would  be  compelled  to 
elect  which  he  would  accept.^] 

§  341.  The  office  of  councilman  in  a  city  is  not  a  lucra- 
tive office,  within  the  meaning  of  a  constitutional  provision 
which  provides  that  no  person  shall  hold  more  than  one 
lucrative  office  at  the  same  time.^ 

§  342.  Where  the  qualifications  required  for  office  are  "a 
residence  in  the  State  of  one  year,"  and  that  one  shall  be  "  a 
citizen  of  the  United  States,"  if  a  person  elected  has  resided 
in  the  State  for  the  time  required,  it  is  not  essential  that  he 
shall  have  been  a  citizen  during  the  whole  of  that  time;  it  is 
sufficient  if  he  were  naturalized  at  the  time  of  the  election. 
"  It  is  not  the  citizen  who  is  required  to  have  resided  in  that 
quality  for  one  year  next  preceding  the  election.  It  is  the 
person,  the  individual,  the  man,  who  is  spoken  of,  and  who 
is  to  possess  the  qualifications  of  residence,  age,  freedom, 
etc.,  at  the  time  he  offers  to  vote,  or  is  to  be  voted  for," ' 

§  343.  The  Constitution,  Article  1,  Section  3,  provides, 
"  no  person  shall  be  a  Senator  who  shall  not  have  attained 
the  age  of  thirty  years  and  been  nine  years  a  citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  inhab- 
itant of  the  State  for  which  he  shall  be  chosen."  Mr.  Shields, 
of  Illinois,  who  was  an  alien  by  birth,  and  who  was  elected 
Senator  before  he  had  been  a  citizen  of  the  United  States  the 
term  of  years  required,  was  held  not  entitled  to  a  seat  under 
said  election.     Such  an  election  is  entirely  void.* 

§  344.  The  Constitution  of  Kentucky  provides  that  **  any 
person  who  shall,  after  the  adoption  of  this  Constitution, 
either  directly  or  indirectly,  give,  accept,  or  knowingly  carry 

1  [Misch  V.  Russell,  136  111.,  33.] 

2  State  V.  Montgomery,  25  La.  Ann.,  138, 
»Biddel  v.  Richard,  CL  &  H.,  407. 
*Case  of  James  Shields,  1  Bart.,  606. 


262  ELECTIONS.  [chap.  XI. 

a  challenge  to  any  person  or  persons  to  fight  in  single  com- 
bat Avith  a  citizen  of  this  State,  with  any  deadly  weapon, 
either  in  or  out  of  the  State,  shall  be  deprived  of  the  right 
to  hold  any  office  of  honor  or  profit  in  this  Commonwealth, 
and  shall  be  punished  otherwise  in  such  manner  as  the  Gen- 
eral Assembly  may  prescribe  by  law."  It  has  been  held  by 
the  board  for  the  determination  of  contested  elections  in 
that  State,  that  this  constitutional  provision  does  not  require 
a  conviction  of  the  crime  of  giving,  accepting  or  carrying 
a  challenge  in  order  to  disqualify  the  offender.'*  It  was 
held  in  this  case  that  under  the  constitutional  provision 
above  quoted,  the  doing  of  any  of  the  acts  named  therein 
disqualifies  the  person  so  acting  for  any  office  of  honor  or 
profit  under  the  State,  besides  subjecting  him  to  such  pun- 
ishment as  may  be  prescribed  by  law ;  that  the  disqualifica- 
tion and  the  offense  against  the  laws  are  separate  subjects ; 
and  that  the  contested  election  board  has  jurisdiction  to  de- 
cide the  former,  without  reference  to  the  latter.  This  decis- 
ion is  based  upon  the  theory  that  the  Constitution  does  not 
declare  the  giving,  accepting  or  carrying  a  challenge  a  penal 
offense:  that  it  does  not  make  these  acts  crimes,  but  simply 
prescribes  as  among  the  qualifications  for  office  that  per- 
sons who  have  so  acted  shall  not  be  eligible. 

This  view  of  the  effect  of  the  constitutional  provision  was, 
however,  expressly  overruled  by  the  Court  of  Appeals  of 
Kentucky,  in  the  case  of  CortiTnonwealih  v.  Jones^  and  it  was 
there  held  that  the  provision  was  not  self-executing,  except 
so  far  as  it  prevents  those  who  cannot  or  will  not  take  the 
requisite  oath  from  entering  upon  office.  It  has  no  other 
effect  until  after  trial  and  conviction  in  the  course  of  a  regu- 
lar judicial  proceeding.  The  disqualification  imposed  is  a 
punishment.  It  in  fact  deprives  the  citizen  of  a  most  valu- 
able right,  and  one  which  has  been  classed  as  inalienable  by 

J  CJochran  v.  Jones,  14  Am.  Law  Reg.  (N.  S.),  222. 

2 10  Bush  (Ky.),  725;  &  C,  14  Am.  Law  Reg.  (N.  S.),  374. 


CHAP.    XI.]  ELIGIBILITY.  263 

the  Supreme  Court  of  the  United  States.^  If  held  to  be 
self-executing,  it  would  authorize  the  trial  of  a  citizen  with- 
out accusation,  his  condemnation  without  proof  or  opportu- 
nity for  defense,  and  his  punishment  without  notice  or  a 
hearing. 

§  345.  It  may  be  stated  as  a  well-settled  proposition,  that 
statutes  and  constitutional  provisions  making  ineligible  to 
oiBce  any  persons  who  have  been  guilty  of  a  crime  or  breach 
of  trust,  always  presupposes  that  the  fact  of  the  commission 
of  such  a  crime  or  breach  of  trust  has  been  ascertained  and 
adjudged  by  the  judgment  of  a  court  of  competent  jurisdic- 
tion. Such  a  fact  can  only  be  established  by  trial  and  judg- 
ment in  due  course  of  law,  in  which  the  accused  shall  be 
entitled  to  a  full  and  fair  hearing.* 

§  346.  As  we  have  seen,  the  question  of  eligibility  to  be 
elected  to  or  to  hold  an  office  is  generally  to  be  determined 
by  the  construction  of  some  statutory  or  constitutional  pro- 
vision fixing  the  qualifications  therefor.  But  cases  have 
arisen  where  both  the  Constitution  and  statute  are  silent. 
Thus,  in  Wisconsin,  there  is  no  statutory  or  constitutional 
provision  to  determine  Avhether  an  alien  may  be  elected 
to  or  hold  office.  In  State  v.  Srnith,^  the  question  arose 
whether  an  alien  could  hold  the  office  of  sheriff.  In  that 
case  the  defendant  was  an  alien,  and  had  entered  upon  the 
discharge  of  the  duties  of  his  office  without  having  become 
an  elector,  which  he  might  have  done  by  declaring  his  inten- 
tion to  become  a  citizen.  Up  to  the  time  of  the  commence- 
ment of  the  action  he  had  not  become  a  voter,  so  that  the  case 
presented  simply  the  question  of  the  right  of  an  alien,  not  a 
voter,  to  hold  the  office.  The  Court  held  that  he  could  not 
hold  it,  and  the  decision  was  put  upon  the  ground  that  a  per- 
son cannot  lawfully  hold  such  an  office  unless  he  is  a  qualified 
elector  of  the  State.     The  Court,  by  Dixon,  C.  J.,  said :  "  It 

1  Cummings  v.  State  of  Missouri,  4  WalL,  277. 

2  Cawley  v.  People,  95  lU.,  249. 
» 14  Wis.,  497. 


264  ELECTIONS.  [chap.  XI. 

is  an  acknowledged  principle,  which  lies  at  the  very  founda- 
tion, and  the  enforcement  of  which  needs  neither  the  aid  of 
statutory  nor  constitutional  enactments  or  restrictions,  that 
the  government  is  instituted  by  the  citizens  for  their  liberty 
and  protection,  and  that  it  is  to  be  administered  and  its  pow- 
ers and  functions  exercised  only  by  them  and  through  their 
agency."  This  case,  however,  went  no  farther  than  to  hold 
that  a  person  not  an  elector  is  ineligible,  in  the  absence  of 
any  statutory  or  constitutional  provision  on  the  subject,  to 
hold  an  oflBce.  It  left  open  the  question  whether  a  person 
not  an  elector  may,  in  the  absence  of  such  statutory  or  con- 
stitutional provision,  be  elected  to  an  office,  and  be  entitled 
to  enter  upon  and  discharge  its  duties,  provided  his  disabil- 
ity is  removed  before  the  commencement'  of  the  term  for 
which  he  is  elected.  This  latter  question,  however,  did  arise 
in  the  same  State,  in  the  more  recent  case  of  State  v.  Mur- 
ray^ and  was  decided  affirmatively.  In  this  case  the  dis- 
tinction is  clearly  made  between  ineligibility  to  hold  an  office 
and  ineligibility  to  be  elected  to  an  office  for  a  term  to  com- 
mence in  the  future,  and  for  the  duties  of  which  the  person 
chosen  may  qualify  himself  before  the  term  begins.  It  may 
here  be  added  that  it  has  been  the  constant  practice  of  the 
Congress  of  the  United  States  since  the  rebellion,  to  admit 
persons  to  seats  in  that  body  who  were  ineligible  at  the  date 
of  their  election,  but  whose  disabilities  had  been  subsequently 
removed.  [The  contrary  rule  has  been  adopted  by  the  Su- 
preme Court  of  Minnesota,  which  holds  that  where  one  is 
ineligible  to  an  office  at  the  time  of  his  election,  he  cannot 
hold  the  office,  even  though,  after  being  so  elected  and  be- 
fore the  official  term  begins,  the  disqualification  is  removed.^] 
§  347.  Where  the  Constitution  prescribes  the  qualifica- 
tions for  an  office,  the  Legislature  cannot  add  others  not 
therein  prescribed.  It  was  accordingly  held  that  where  the 
Constitution  provided  that  "  all  civil  officers  of  the  Common- 

128  Wis.,  96. 

2  [State  V.  Sullivan,  45  Minn.,  309.] 


CHAP.  XI.]  ELIGIBILITY.  265 

wealth  at  large  shall  reside  within  the  State,  and  all  district, 
county  or  town  oflScers  within  their  respective  districts,"  it 
was  not  competent  for  the  Legislature  to  require  the  Secre- 
tary of  State  to  reside  at  the  seat  of  government.^  In  the 
same  case  it  was  further  held  that,  by  the  common  law,  min- 
isterial officers  may  generally  appoint  deputies  to  act  in  the 
name  and  place  of  the  principal,  and  whose  acts  within  the 
scope  of  their  appointment  will  be  held  valid. 

§  348.  An  office  may  be  abandoned  by  removal  from  the 
State,  county  or  district  to  which  the  officer  is  restricted  by 
the  law  of  his  office ;  or  by  accepting  an  incompatible  office ; 
or  by  the  relinquishment  of  any  express  qualification;  or  by 
the  assumption  of  any  absolute  disqualification,  or  by  resig- 
nation.2  It  is  well  settled  that  the  acceptance  by  a  member 
of  Congress  of  a  disqualifying  office,  after  he  has  taken  his 
seat,  operates  as  a  forfeiture  of  it,  and  creates  a  vacancy  in 
the  House  to  which  such  member  belonsfs.' 

§  349.  If  the  official  term  of  a  public  officer  is  limited  by 
law  or  constitutional  provision  to  a  given  term  of  years, 
without  the  right  expressly  or  impliedly  given  of  holding 
until  his  successor  is  chosen  and  qualified,  then  in  case  of 
the  failure  to  choose  a  successor  a  vacancy  must  occur  which 
may  result  in  serious  public  inconvenience  and  injury. 
According  to  the  common  law  public  offices  were  granted  by 

1  Page  V.  Hardin,  8  B.  Mon.,  648. 

2  Id.  A  deputy  collector  of  customs  has  an  absolute  right  to  resign 
his  office,  and  after  his  resignation  is  final  it  cannot  be  withdrawn;  but 
a  prospective  resignation  may  be  withdrawn  at  anytime  before  accept- 
ance, and  after  acceptance  it  may  be  withdrawn,  if  the  authority  accept- 
ing consents,  and  if  no  new  rights  have  intervened.  Bunting  v.  Willis, 
27  Gratt,  144.  And  see  to  the  same  effect.  State  v.  Hauss,  43  Ind.,  105; 
State  V.  Boecker,  56  Mo.,  17.  In  the  latter  case  it  was  held  that  a  resig- 
nation to  take  effect  in  the  future  could  be  withdrawn  at  any  time 
before  the  date  at  which  it  takes  effect.  [People  v.  Leonard,  73  CaL, 
230.] 

»  Case  of  Van  Ness,  CL  &  H.,  122;  Cases  of  Baker  and  Yell,  1  Bart,  92; 
Byington  v.  Vandever,  Id.,  395;  Stanton  v.  Lane,  Id.,  637;  §§  337-339. 


266  ELECTIONS.  [CIIAP.  XI. 

the  crown  to  a  man  in  fee  or  for  life  as  well  as  for  years.* 
They  were  regarded  as  a  species  of  incorporeal  hereditaments, 
and  consisted  in  a  right  and  corresponding  duty  to  execute  a 
public  or  private  trust.  It  seems  to  be  clear  that  at  common 
law  a  public  officer  appointed  for  a  term  of  years  possessed 
no  implied  right  to  hold  over  after  the  end  of  his  term  until 
his  successor  should  be  chosen  and  qualified.^  But  there 
is  both  reason  and  authority  to  support  the  proposition  that 
in  the  United  States  there  is  an  implied  right  to  hold  over 
unless  the  contrary  appears  to  be  the  plain  requirement  of 
the  statute.'  In  this  country  nearly  all  public  offices  are  held 
for  a  brief,  limited  time,  and  the  term  is  frequently  for  only  a 
single  year.  If  the  English  rule  were  applied  in  all  its 
strictness  to  official  tenures  here,  it  might  very  often  happen 
that  vacancies  would  occur  by  reason  of  a  failure  to  elect,  or 
to  qualify  a  successor,  or  by  reason  of  the  death  or  disability 
of  the  person  so  chosen,  or  other  similar  causes.*  It  is  at 
least  clear  that  an  officer  holding  over  pending  the  election 
or  qualification  of  a  successor  will,  for  the  protection  of  third 
parties  and  the  public,  be  regarded  as  an  officer  de  facto,  and 
his  official  acts  will  be  upheld  on  this  ground.'  The  ques- 
tion here  suggested  is  probably  not  of  very  great  impor- 
tance, for  the  reason  that  it  is  believed  that  in  nearly  or 
quite  all  of  the  States  there  are  statutory  or  constitutional 
provisions  to  the  effect  that  all  public  officers  shall  hold 
for  a  specified  time  and  until  their  successors  are  duly  qual- 
ified. 

Such  a  clause  is  to  be  found  in  the  Constitution  of  Penn- 
sylvania, and  under  it  the  Supreme  Court  of  that  State  held 
that  where  the  person  elected  to  an  office  dies  before  being- 

1 3  Kent's  Com.,  54. 

2  People  V.  Tieman,  8  Abb.  (N.  Y.)  Pr.,  359. 
» [Bath  V.  Reed,  78  Me.,  276.] 

*Cordeill  v.  Frizell,  1  Nev.,  130;  State  v.  Wells,  8  Nev.,  105;  Walker  «t 
Ferrell,  58  Ga.,  512. 
*  People  V.  Tieman,  supra;  State  v.  Williams,  5  Wis.,  308. 


OHAP.  XI.]  ELIGIBILITY.  267 

qualified,  the  previous  incumbent  holds  over.^  In  such  a 
case  the  death  of  the  person  elected  creates  no  vacancy. 
'Newer  having  occupied  the  office,  his  death  made  no  change 
in  it.  Therefore,  though  the  Governor  be  authorized  to  fill 
all  vacancies  by  appointment,  he  had  no  power  in  such  a 
case  to  appoint. 

§  350.  An  officer  commissioned  to  hold  oflSce  for  the 
term  of  four  years  from  March  2,  1845,  was  held  to  have 
been  in  office  on  that  day.  The  word  "  from  "  includes  the 
day  of  date.2 

§  351.  Where  the  Constitution  of  a  State  fixes  the  tenure 
of  an  office  at  four  years,  an  act  of  the  Legislature  of  such 
State  providing  for  an  election  to  that  office,  and  limiting 
the  term  of  the  person  to  be  elected  to  two  years,  is  void  in 
so  far  as  it  relates  to  the  length  of  the  term.  But  in  other 
respects  it  is  constitutional  and  valid,  and  the  person  chosen 
under  it  will  be  entitled  to  hold  the  office  for  the  constitu- 
tional term  of  four  years.' 

§  352.  Where  the  law  requires  an  officer  resigning  to  do 
so  by  a  written  resignation,  to  be  sent  to  the  Governor,  it  is 
not  necessary  that  the  Governor  should  signify  his  acceptance 
of  a  resignation  to  make  it  valid.  The  tenure  of  office,  in 
such  a  case,  does  not  depend  upon  the  will  of  the  executive, 
but  of  the  incumbent.  It  has  been  held  that  a  civil  officer 
has  the  absolute  right  to  resign  his  office  at  pleasure,  and  it 
is  not  within  the  power  of  the  executive  to  compel  him  to 
remain  in  office.* 

This,  however,  was  not  the  rule  at  the  common  law,  by 
which  an  office  was  regarded  as  a  burden  which  the  ap- 

1  Commonwealth  v.  Hauley,  9  Pa.  St.,  513. 

2  Batesville  Institute  v.  Kauffman,  18  Wall.,  151. 

3  People  V.  Roseborough,  14  Cal.,  180. 

*  People  V.  Porter,  6  Cal.,  26.  See,  also.  United  States  v.  Wright,  1 
McLean's  Reports,  512;  Gates  v.  Delaware  County,  12  la.,  405;  State  v. 
Clark,  3  Nev.,  566;  State  v.  Fitts,  49  Ala.,  402;  Bunting  v.  Willis,  27 
Grat,  144 


268  ELECTIONS.  [chap.  XI. 

pointee  was  bound  in  the  interest  of  good  government  to 
bear,  and  which  he  was  not  allowed  to  lay  down  without  the 
consent  of  the  appointing  power.^  The  Supreme  Court  of 
the  United  States  has  recently  said  that  "  In  this  country, 
where  offices  of  honor  and  emolument  are  commonly  more 
eagerly  sought  after  than  shunned,  a  contrary  doctrine  with 
regard  to  such  offices,  and  in  some  States  with  regard  to 
offices  in  general,  may  have  obtained ;  but  we  must  assume 
that  the  common-law  rule  prevails  unless  the  contrary  be 
shown."  2 

§  353.  Where  an  officer  is  commissioned  for  a  certain 
term  of  years  "if  he  shall  so  long  behave  himself  well," 
he  cannot  be  removed  for  misbehavior  without  notice  and 
a  trial.  The  conviction  of  misbehavior  in  our  govern- 
ment implies  a  right  to  notice,  defense  and  proof,  on  the 
part  of  the  officer,  and  is  a  judicial  question.  The  exec- 
utive, therefore,  cannot  determine  that  the  Secretary  of 
State,  or  any  other  officer  holding  during  good  behavior, 
has  been  guilty  of  misbehavior  and  thereupon  remove  such 
officer.' 

§  354.  The  doctrine  of  Page  v.  Hardin  *  was  approved 
and  adopted  by  the  Supreme  Court  of  IS^ew  Jersey,  in  the 
case  of  The  State  v.  Prichard.^  And  in  this  latter  case 
the  Court  went  further,  and  held  that  even  if  the  incumbent 
of  an  office  be  convicted  of  an  infamous  crime,  this  does  not, 
vpsofacto^  work  such  a  forfeiture  of  his  office  as  to  make  it 

iKyd,  Corp.,  Chap.  3,  Sec.  4;  Grant,  Corp.,  pp.  221,  223,  268;  1  Dili, 
Mun.  Corp.,  Sec.  163;  Rex  v.  Burder,  4  T.  R,  778;  Van  Orsdall  tJi.  Haz- 
eard,  3  HiU  (N.  Y.),  243;  State  u  Ferguson,  31  N.  J.  L.,  107. 

2  Edwards  u  United  States,  103  U.  S,,  471,  474  And  see  to  the  same 
effect.  State  v.  Clayton,  27  Kan.,  442;  Rogers  v.  Sloanaker,  32  Id.,  191; 
[Coleman  v.  Sands,  87  Va.,  689J. 

'  Page  V.  Hardin,  8  B.  Mon.,  648.  But  see  State  r.  Doherty,  25  La.  An., 
119,  where  the  power  of  the  executive  to  decide  in  such  a  case,  uncon- 
trolled by  any  other  branch  of  the  government,  is  maintained. 

<  Sujpra. 

»  [86  N.  J.  Law,  lOlJ;  12  Am.  Law  Reg.  (N.  a),  p.  614 


CHAP.  XI.]  ELIGIBILITT.  269 

vacant.  It  was  determined  that  in  the  absence  of  any  stat- 
ute expressly  declaring  that  such  conviction  shall  create  a 
vacancy  in  the  oifice,  it  is  not  within  the  power  of  the  execu- 
tive to  give  it  this  effect,  and  to  appoint  a  successor  to  the 
person  convicted.  The  right  to  remove  a  public  officer  for 
misbehavior  in  office  does  not  appertain  to  the  executive,  but 
such  is  a  judicial  act,  and  belongs  to  a  Court, —  in  New 
Jersey  to  the  Court  of  Impeachments.  Because  the  convic- 
tion of  an  officer  of  an  infamous  crime  deprives  him  of  the 
right  to  testify  as  a  witness  and  of  the  right  to  vote,  it  does 
not  follow  that  it  also  deprives  him  of  his  office.  Says  the 
Court  in  the  case  just  cited :  "  Because  as  a  punishment  the 
law  has  denounced  a  loss  of  two  of  the  rights  of  citizenship, 
it  does  not  follow  that  a  third  right  is  to  be  withheld  from 
the  delinquent.  Indeed,  the  reverse  result  is  the  reasonable 
deduction,  because  it  is  clear  on  common  principles  that  no 
penalty  for  crime  but  that  which  is  expressly  prescribed  can 
be  exacted.  The  fact  that  severe  penal  consequences  are  an- 
nexed by  statute  to  the  commission  of  a  breach  of  law  can- 
not warrant  the  aggravation,  by  the  judicial  hand,  of  the 
punishment  prescribed."  It  may  not  be  out  of  place  here 
to  remark  that,  while  the  law  is  no  doubt  as  laid  down  in 
the  case  just  cited,  it  would,  as  the  judge  delivering  the 
opinion  clearly  intimates,  be  well  for  the  legislatures  of  the 
several  States  to  provide  by  statute  that  the  conviction  of  a 
public  officer  of  any  official  delinquency,  or  of  the  commis- 
sion of  an}'-  infamous  crime,  shall  ipso  facto  work  a  forfeit- 
ure of  his  office,  and  that  the  record  of  such  conviction  by  a 
court  of  competent  jurisdiction  shall  be  sufficient  to  author- 
ize the  proper  authority  to  declare  and  to  fill  the  vacancy. 
For  it  is  plain  that  in  the  absence  of  such  legislation,  accord- 
ing to  the  law,  which  seems  well  settled,  a,  convicted  felon 
may,  for  a  time  at  least,  continue  to  exercise  the  functions 
of  a  public  office,  unless  indeed  by  imprisonment  he  be  de- 
prived of  the  power  to  do  so. 


270  ELECTIONS.  [chap.  XI. 

§  355.  It  seems  to  be  settled  that  the  power  of  removal 
from  office  is  incident  to  the  power  of  appointment  in  those 
cases  only  where  the  tenure  is  not  iBxed  by  law,^  and  where 
the  office  is  held  at  the  pleasure  of  the  appointing  power;' 
and  where  the  appointing  power  may  remove  for  cause,  he 
is  the  sole  judge  of  the  existence  of  the  cause.' 

§  356.  The  record  of  the  proceedings  of  a  City  Council, 
removing  an  officer  for  misconduct,  must  state  the  specific 
acts  complained  of,  so  far  as  necessary  to  show  the  jurisdic- 
tion of  the  Council.  The  jurisdiction  must  appear,  and  it 
will  not  be  presumed.* 

§  357.  The  Constitution  of  Kansas  provides  that,  "  in 
case  of  any  vacancy  in  any  judicial  office,  it  shall  be  filled  by 
appointment  by  the  Governor,  until  the  next  regular  election 
that  shall  occur  more  than  thirty  days  after  such  vacancy 
shall  have  happened."  Where  the  Governor,  acting  under 
the  power  here  conferred  to  fill  a  vacancy,  appointed  a  per- 
son to  the  office  of  justice  of  the  peace,  made  vacant  by  the 
resignation  of  the  incumbent,  it  was  held  that  the  person 
appointed  could  hold  only  until  the  first  election  thereafter, 
which  occurred  more  than  thirty  days  after  the  happening 
of  the  vacancy,  and  if  that  election  occurred  before  the  ex- 
piration of  the  original  term,  the  person  chosen  thereat  could 
hold  only  for  the  remainder  of  the  original  term.  Where 
the  law  fixes  the  term  of  an  office,  and  provides  when  it 
shall  be  filled,  as,  for  example,  at  the  regular  election  in  each 
alternate  year,  the  term  is  not  affected  by  the  death,  resigna- 
tion or  removal  of  the  incumbent.  The  regular  election  for 
the  full  term  must  take  place  precisely  as  if  no  vacancy  had 
occurred.    The  recitals  in  a  certificate  of  election,  as  to  the 

^  Territory  v.  Askenf elter,  4  New  Mex.,  85. 

«  Collins  V.  Tracy,  36  Tex.,  546;  [Carr  v.  State.  Ill  Ind.,  lOlJ. 

»  Patten  V.  Vaughn,  39  Ark.,  311;  [Lynch  v.  Chase,  55  Kan.,  367;  S.  C, 
40  Pac.  Rep.,  666;  McMaster  v.  Herald,  56  Kan.,  331;  S.  C,  42  Pac.  Rep., 
697]. 

*  State  V.  Lupton,  64  Ma,  41S. 


OHAP.  XI.]  ELIGIBILITY.  271 

duration  of  the  term,  are  at  best  hnt  prima  facie  evidence  of 
such  duration,  and  can  always  be  overthrown  by  competent 
testimony.  It  has  been  therefore  held  that  where  a  person 
was  elected  at  an  election  occurring  in  the  middle  of  the 
original  term  of  two  years,  the  fact  that  he  received  a  certifi- 
cate declaring  that  he  was  chosen  for  two  years,  made  no 
difference  as  to  his  rights.  * 

§358.  In  State  v.  Jones^'^  the  following  propositions 
were  laid  down: 

1.  "Where  it  appears  prima  facie  that  acts  or  events 
have  occurred  subjecting  an  oflBce  to  judicial  declaration  of 
being  vacant,  the  authority  authorized  to  fill  such  vacancy, 
supposing  the  office  to  be  vacant,  may  proceed  before  pro- 
curing a  judical  declaration  of  the  vacancy,  and  appoint  or 
elect,  according  to  the  forms  of  law,  a  person  to  fill  such 
office;  but  if,  when  such  person  attempts  to  take  possession 
of  the  office,  he  is  resisted  by  the  previous  incumbent,  he 
will  be  compelled  to  try  his  title  and  oust  such  incumbent, 
or  fail  to  oust  him,  in  some  mode  prescribed  by  law. 

2,  If  such  elected  or  appointed  person  finds  the  office  in 
fact  vacant,  and  can  take  possession  uncontested  by  the  former 
incumbent,  he  will  be  an  officer  de  facto,  and  should  the 
former  incumbent  never  appear  to  contest  his  right  he  will 
be  regarded  as  having  been  an  officer  de  facto  and  de  jure; 
but  should  such  former  incumbent  appear  after  possession 
has  been  taken  against  him,  the  burden  of  proceeding  to 
oust  the  then  actual  incumbent  will  fall  upon  him,  and  if  in 
such  proceeding  it  is  made  to  appear  that  facts  had  occurred 
before  the  appointment  or  election,  justifying  a  judicial 
declaration  of  a  vacancy,  it  will  be  then  declared  to  have  ex- 
isted and  the  election  or  appointment  be  held  to  have  been 
valid." 

And  it  is  doubtless  true,  as  here  stated,  that  no  judicial 

1  Hale  t>.  Evans,  13  Ean.,  683. 
«  19  Ind.,  356,  359. 


272  ELECTIONS.  [chap.  XL 

declaration  of  a  vacancy  is  absolutely  necessary,  and  that  if 
a  vacancy  in  fact  exists,  the  proper  authority  may  fill  it. 
But  where  the  whole  body  of  the  electors  constitute  the 
proper  authority  to  fill  a  vacancy,  if  they  proceed  upon  the 
idea  that  its  existence  is  a  matter  of  general  notoriety  and 
without  any  notice  or  proclamation  of  the  same,  it  must  ap- 
pear that  it  was  notorious  and  that  the  whole  body  of  the 
electors,  or  at  least  the  principal  part  of  them,  were  aware  of 
it,  and  took  part  in  the  election  to  fill  it,  or  had  an  oppor- 
tunity to  do  so. 

§  359.  It  seems  that  the  power  ^iven  by  the  Constitution 
of  the  United  States  to  the  executive  of  any  State,  to  make 
temporary  appointments  to  fill  vacancies  which  may  happen 
during  the  recess  of  the  legislature,  does  not  empower  such 
executive  to  anticipate  a  vacancy,  and  make  an  appointment 
to  fill  it,  before  it  happens.*  Such  appears  to  have  been  the 
ground  upon  which  Mr.  Lanman  was  refused  a  seat  in  the 
Senate,  although  it  does  not  very  clearly  appear,  either  from 
the  report  of  the  committee  or  the  debate  in  the  Senate,  what 
were  the  reasons  for  the  decision.  The  record,  however,  dis- 
closes no  objection  to  the  validity  of  the  appointment,  other 
than  the  fact  that  it  was  made  before  the  vacancy  happened. 
And  in  the  course  of  the  discussion  of  a  subsequent  case  in 
the  Senate*  this  case  was  frequently  referred  to  as  having 
been  decided  upon  the  ground  above  stated.  In  the  latter 
case  Mr.  Bibb,  Senator  from  Kentucky,  said,  referring  to  the 
case  of  Mr.  Lanman :  "  The  Governor  had  thought  fit  to  ap- 
point Mr.  Lanman  to  a  vacancy  which  would  occur,  not  one 
which  had  occurred.  This  (the  Governor's)  act  was  conse- 
quently declared  void."* 

It  has,  however,  as  we  shall  see,*  been  held  by  the  United 
States  Senate,  in  the  case  of  Bell,  of  New  Hampshire,*  that 

*  Case  of  James  Lanman,  CI.  «fc  H.,  871. 
»  Potter  ».  Robbins,  CI.  &  H.,  877,  886. 

*  See  Potter  «.  Bobbins,  CI.  &  H.,  Mfpra. 

*  §  365. 

*  Forty-ninth  Congress. 


CHAP.  XI.]  ELIGIBIUTY.  273 

an  executive  of  the  State  may  appoint  a  Senator  to  fill  the 
vacancy  happening  at  the  beginning  of  a  terra,  as  well  as  one 
that  occurs  by  death,  resignation  or  otherwise,  after  the  office 
has  once  been  filled. 

§  360.  A  member  of  the  Senate  of  the  United  States 
holding  an  office  under  executive  appointment,  has  a  right  to 
occupy  the  seat  until  the  vacancy  is  filled  by  the  legislature, 
or  until  the  adjournment  of  the  next  session  of  the  State 
legislature,  as  held  in  the  case  named  in  the  succeeding 
section.  1 

§  361.  In  the  case  of  Phelps  of  Vermont,^  it  was  held 
by  the  United  States  Senate  that  an  executive  appointment 
made  to  fill  a  vacancy  expires  with  the  adjournment  of  the 
next  session  of  the  legislature  of  the  State,  after  such  ap- 
pointment is  made,  so  that  if  the  legislature  meets  after  such 
appointment  is  made  and  adjourns  without  electing  a  senator, 
the  seat  becomes  vacant.  The  appointee  of  the  executive 
can  not  hold  over  after  the  failure  of  the  legislature  to  elect. 
The  language  of  the  constitution,  "until  the  next  meeting  of 
the  legislature,"  was  construed  to  be  equivalent  to  the  words, 
"until  the  next  session,"  etc.,  and  the  appointee  was  held 
entitled  to  hold  the  seat  until  the  adjournment  of  the  legis- 
lature without  action,  when  his  term  of  service  was  held  to 
have  expired.  The  case  of  Senator  Phelps,  in  which  these 
propositions  may  be  said  to  have  been  finally  settled,  was  de- 
cided by  the  Senate  after  full  discussion,  and  against  the 
majority  of  the  judiciary  committee  and  sustaining  the  views 
of  the  minority.  This  minority  report  has  become  the  law 
of  the  Senate  upon  the  subject.  It  is  an  able  and  exhaustive 
discussion  of  the  whole  subject,  and  contains  a  citation  of  all 
the  precedents. 

§  362.  As  early  as  the  year  1791,  it  was  decided  in  the 
lower  House  of  Congress  that  a  member  of  that  body  may 
tender  his  resignation  to  the  governor  of  his  State,  and  that 

»  Case  of  Winthrop,  1  Bart.,  807. 
*  1  Bart.,  618. 
18 


274  ELECTIONS.  [chap.  XI. 

such  governor  may  issue  a  writ  for  a  new  election,  without 
any  notice  to,  or  action  by  the  House  of  Represeniatives.  * 
The  Constitution  provides  that,  "when  vacancies  happen 
in  the  representation  from  any  State,  the  executive  authority 
thereof  shall  issue  writs  of  election  to  fill  such  vacancies."* 
It  is  now  well  settled  that  the  consent  of  the  House  is  not 
necessary  to  the  resignation  of  a  member.  The  right  to 
resign  is  absolute,  and  may  be  exercised  even  by  a  member 
when  under  charges  or  pending  a  resolution  for  his  expul- 
sion. •  Such  being  the  law,  it  is  of  course  not  essential  to 
the  validity  of  a  resignation  that  it  be  addressed  to  the  House, 
or  to  its  Speaker.  If  addressed  to  the  executive  of  the 
State,  it  is  sufficient,  and  creates  a  vacancy  for  the  filling  of 
which  he  may  issue  a  writ  in  accordance  with  the  law  of  the 
State.  It  is  however  highly  proper,  that  the  House  be 
informed  of  the  resignation  of  one  of  its  members,  at  the 
earliest  moment  practicable,  and  if  the  House  be  in  session  at 
the  time  of  such  resignation,  it  is  the  uniform  custom  for  the 
member  resigning  to  address  a  letter  to  the  Speaker,  inform- 
ing him  and  the  House  of  the  fact,  that  he  has  sent  his 
resignation  to  the  executive  of  the  State. 

§  363.  "Where  the  constitution  of  a  State  authorizes  the 
governor  to  fill  vacancies  that  may  happen  in  certain  offices 
during  the  recess  of  the  Senate,  by  granting  commissions, 
etc.,  such  governor  has  no  power  to  create  a  vacancy  by  a 
declaration  that  one  exists,  and  granting  a  commission  to  fill 
it.  The  decision  of  the  governor  in  such  a  case  that  a 
vacancy  exists,  is  not  conclusive  as  to  the  rights  of  others, 
and  if,  upon  a  judicial  investigation,  by  a  court  of  competent 
jurisdiction,  it  is  determined  that  no  vacancy  existed,  the 
appointment  by  the  governor  is  void,  and  must  be  set  aside.  * 

>  Case  of  John  J.  Mercer,  CI.  &  H.,  44;  Case  of  Benj.  Edwards,  Id.,  92. 
«  Const  Art.  1.,  Sec.  2. 

■  Case  of  Matteson,  Thirty-eighth  Congress,  and  of  Wliittemore,  Forty. 
first  Congress. 
*  Page  9.  Hardin,  8  6.  Mon.,  648. 


CHAP.  XI.]  ELIGIBILITY.  275 

The  judiciary  must,  where  individual  right  is  involved, 
decide  upon  the  legality  of  an  act  of  the  supreme  executive 
power,  as  well  as  upon  the  validity  of  legislative  acts.* 

§  364.  It  is  provided  by  the  Constitution  of  the  United 
States, 2  that  "The  President  shall  have  power  to  fill  up  all 
vacancies  that  may  happen  during  the  recess  of  the  Senate, 
by  granting  commissions,  which  shall  expire  at  the  end  of 
their  next  session."  Suppose  a  vacancy  first  happens  during 
a  session  of  the  Senate,  but  continues  to  exist  during  the 
subsequent  recess,  can  the  President  fill  it?  This  question 
has  been  much  discussed.  It  will  be  seen  by  reference  to  the 
authorities  that  a  difierence  of  opinion  prevails.  *  The  prac- 
tice of  the  Executive  Department,  as  will  be  seen  by  reference 
to  the  Opinions  of  the  Attorneys  General,  has  been  to  regard 
the  power  of  appointment  as  extending  to  all  vacancies  that 
may  happen  to  exist  during  a  recess  of  the  Senate;  while  of 
the  judges  who  have  considered  the  question,  Cadwallader, 
District  Judge,  and  Jackson,  Circuit  Judge,  hold  the  view 
that  a  vacancy  which  first  happens  while  the  Senate  is  in 
Session,  can  not  be  filled  by  appointment  by  the  President 
after  the  adjournment  of  the  Senate;  while  Mr.  Justice 
Wood  agreeing  with  the  Attorneys  General  whose  opinions 
are  cited  above,  sustains  the  power.  While  the  weight  of 
these  opinions  undoubtedly  sustains  the  power  of  appoint- 
ment in  all  cases  where  a  vacancy  happens  to  exist  during  a 
recess  of  the  Senate,  it  is  apparent  that  the  question  can  only 
be  finally  put  at  rest  by  a  decision  of  the  Supreme  Court  of 
the  United  States. 

§365.  There  are  authorities  of  great  weight,  holding 
that  the  power  to  fill  a  vacancy,  occurring  in  an  office  can 

»Id. 

»  Art.  2,  Sec.  2,  clause  2. 

•  Case  of  the  District  Attorney,  7  Am.  Law  Reg.,  N.  S.,  786 ;  8.  O.,  8 
Int.  Rev.  Rec,  138 ;  In  re  Farrow  and  Bigby,  4  Woods,  491 ;  S.  C,  3  Fed. 
Rep.,  112;  1  Op.  Att'ys  Gen.,  631;  2  Id.,  525;  3  Id.,  673;  4  Id.,  638;  7  Id., 
186;  10  Id.,  356;  11  Id.,  179;  12  Id.,  32;  Id.,  449;  14  Id.,  53B;  In  re  Yancy 
28  Fed.  Rep.,  445.  * 


276  ELECTIONS.  [chap.  XI. 

not  be  exercised,  until  the  office  has  once  been  filled  dnring 
the  term  thereof;  and  that  therefore  no  such  power  exists  in 
a  case  where  there  has  merely  been  a  failure  to  elect  within 
the  time  required  by  law.  Or,  in  other  words,  it  has  been 
held,  that  where  power  is  vested  in  the  executive  to  fill 
vacancies,  reference  is  had  to  such  vacancies  as  occur  from 
death,  resignation,  promotion  or  removal,  i  A  different  rule 
was,  however,  laid  down  by  the  United  States  Senate,  in  the 
case  of  Senator  Bell  of  New  Hampshire.  *  That  case  involved 
the  construction  of  Article  1.,  Section  3,  of  the  Constitution  of 
the  United  States,  which  provides  that  if  vacancies  in  the 
United  States  Senate  "happen  by  resignation  or  otherwise, 
during  the  recess  of  the  legislature  of  a  State,  the  executive 
thereof  may  make  temporary  appointments  until  the  next 
meeting  of  the  legislature,  which  shall  then  fill  such 
vacancies." 

It  was  contended  that  the  authority  of  the  governor  to 
appoint  is  limited  to  filling  vacancies  which  happen  in  a 
term  which  had  been  previously  filled  by  the  legislature,  and 
this  was  the  view  taken  by  the  majority  of  the  committee. 
But  the  report  of  the  minority,  which  was  adopted  by  the 
Senate,  took  the  ground  that  the  governor  may  also  fill  a 
vacancy  which  happens  when  the  legislature  has  failed  to 
make  the  election,  or  the  person  chosen  declines  the  appoint- 
ment, as  well  as  when  the  office,  once  filled,  is  vacated  by 
death,  resignation,  or  otherwise.  The  minority  report  in 
this  case,  submitted  by  Senator  Hoar,  of  Massachusetts,  and 
which  may  now  be  regarded  as  the  law  of  the  Senate,  will  be 
found  in  the  Congressional  Record  of  April  3,  1879,  and  an 
elaborate  discussion  is  recorded  in  succeeding  pages. 

S  366.  The  question  whether  the  legislature  of  Michigan 
has  power  by  legislative  enactment  to  appoint  certain  munici- 
pal officers  was  much  discussed  in  the  case  of  The  People  v. 

'Sargent  on  Constitutional  Law,  378;  Schenk  ».  Peay,  1  Dill.,  267;^ 
Story  on  The  Constitution,  Sec.  1559. 
'  Forty-ninth  Congress. 


CHAP.  XI.]  ELIGIBILITY.  •    277 

Hurlbut.  ^  The  act  in  question  was  one  whereby  the  legisla- 
ture provided  for  the  creation  of  a  board  of  public  works  of 
the  city  of  Detroit,  and  undertook  to  name  ten  persons  who 
should  compose  such  board.  Independently  of  any  constitu- 
tional limitation  upon  the  power  of  the  legislature,  it  was  in- 
sisted that  this  was  an  exercise  of  executive  power  as  contra- 
distinguished from  legislative.  It  was  also  insisted  that  the 
act  was  in  violation  of  that  provision  of  the  Constitution  of 
Michigan  which  declares  that  "judicial  oflficers  of  cities  and 
villages  shall  be  elected  or  appointed  at  such  time  and  in 
such  manner  as  the  legislature  shall  direct."  The  Court  was 
agreed  in  holding  that  the  legislature  had  no  power  to  make 
a  permanent  appointment  by  statute  naming  the  incumbents. 
Upon  the  question  whether  the  appointment  of  such  officers 
by  the  legislature  as  was  attempted  by  the  act  in  question 
could  be  sustained  as  provisional  or  initiatory  only,  for  the 
purpose  of  a  primary  organization  of  the  board  and  to  put  it 
in  full  operation,  the  judges  were  evenly  divided,  Christiancy 
and  Cooley,  Judges,  holding  the  affirmative,  and  Campbell, 
Chief  Justice,  and  Graves,  Judge,  the  negative.  ^ 

§  367«  It  seems  to  be  settled  that  the  title  to  an  office 
confers  upon  the  person  elected  a  right  to  the  fees  and  emolu- 
ments thereof,  from  the  commencement  of  his  legal  terra. 
And,  accordingly,  it  has  been  frequently  held  that  an  action 
for  money  had  and  received  will  lie  by  the  officer  de  jure 
against  one  who  has  intruded  into  the  office  by  color  of  a 
certificate  of  election,  to  recover  fees  received  during  the 
time  of  such  intrusion." 

>  24  Mich.,  44, 113. 

■  The  following  cases  may  be  consulted  upon  the  general  subject  of 
legislative  appointments  to  office:  People  e.  Lothrop,  34  Mich.,  235; 
People  V.  Common  Council,  29  Mich.,  108, 110;  People  ex  rel.  v.  Draper 
15  N.  Y.,  532;  People  ex  rel.  «.  Albertson,  55  N.  Y.,  50;  People  ex  rel.  «., 
Palmer,  52  N.  Y.,  83;  People  ex  rel.  v.  Bull,  46  N.  Y.,  57;  People  ex  reL 
V.  McKinney,  52  N.  Y.,  374;  People  ex  rel.  v.  Common  Council,  28  Mich., 
228 ;  and  see  other  cases  cited  in  People  v.  Hurlbut,  supra. 

»  Arris  v.  Stukely,  2  Mod.,  260;  S.  C,  1  Selw.,  N.T.,  68;  Crosbie  v.  B.XU. 
ley,  1  Ale  &  Nap.,  431;  May  field  v.  Moore,  Bright.  Elec.  Cas.,  605. 


278  ELECTIONS.  [chap.  XL 

The  fees  and  emoluments  "  are  incident  to  and  as  clearly 
connected  with  the  office  as  are  rents  and  profits  to  real 
estate,  or  interest  to  bonds  and  such  like  securities."  ^  In 
Mayfield  v.  Moore^  it  was  held,  however,  that  if  the  incum- 
bent received  his  commission  honajide,  he  will  be  allowed  in 
such  action  his  reasonable  expenses  in  executing  the  duties 
of  the  office,  but  otherwise  if  his  intrusion  was  without  pre- 
tense of  legal  right. 

§  368,  In  this  country,  however,  the  appointment  or  elec- 
tion of  a  person  to  a  public  office  creates  no  contract  be- 
tween the  government  and  the  officer  to  permit  him  to 
perform  the  duties  and  receive  the  compensation  for  any 
particular  period  of  time.  The  office  may  be  abolished  or 
the  compensation  increased  or  decreased,'  or  the  duties 
changed  by  law  at  any  time.*  A  vested  right  to  fees  or 
compensation  arises  only  from  the  actual  rendition  of  serv- 
ices.' 

1  Glascock  v.  Lyons,  20  Ind.,  1;  Petit  v.  Rosseau,  15  La.,  239;  People  v. 
Smyth,  28  CaL,  21;  People  v.  Tieman,  30  Barb.,  193;  People  u  Pease,  27 
N.  Y.,  45,  56;  Hunter  v.  Chandler,  45  Mo.,  452;  United  States  u  Addison, 
6  Wall.,  291;  Mott  v.  Connolly,  50  Barb.,  516. 

2  Supra. 

3  [People  V.  Kings,  105  N.  Y.,  180.] 

<  [Smith  V.  Waterbury,  54  Conn.,  174] 

6  Smith  V.  New  York,  37  N.  Y.,  518;  O'Conner  v.  Mayor,  1  Seld.,  285; 
Warner  v.  People,  2  Den.,  272;  Swan  v.  Buck,  40  Miss.,  263,  302;  Coffin 
V.  State,  7  Ind.,  157;  Benford  v.  Gibson,  15  Ala.,  521;  Barker  v.  Pittsburg, 
4  Barr  (Pa.  St.),  49. 


CHAPTER  XII. 

CONTESTED  ELECTIONS  —  TRIBUNALS  AND  REMEDIES. 

369.  Quo  warranto,  common-law  jurisdiction. 

369.  Special  tribunals. 

369.  Office  of  Governor. 

370.  Jurisdiction  of  Legislature. 

370.  Mode  of  proceeding  before  legislative  body. 

871.  Contestant  not  absolutely  necessary. 

372.  Construction  of  acts  of  Congress  regulating  mode  of  proceeding. 

873.  Such  acts  directory  only. 

374.  Certificate  of  election  prima  facie  only. 

375,  376.    Sitting  member  not  entitled  to  vote. 
877.    Jurisdiction  of  the  House  exclusive. 
378.    Jurisdiction  of  special  tribunals. 

879.    Courts  may  compel  them  to  act  by  mandamus. 
879.    Members  thereof  must  be  disinterested. 

380.  Power  of  legislative  bodies  to  judge  of  the  election  and  qualifi- 

cation of  their  own  members,  when  exclusive. 

381.  Jurisdiction  of  courts  in  absence  of  special  provision  of  law. 

883.  Such  jurisdiction  extends  to  a  contest  for  the  office  of  Governor 

of  a  State. 
383.    But  not  to  control  the  Governor  in  the  performance  of  official 
functions. 

884,  385.    Mandamus  to  compel  canvassers  to  determine  and  certify 

result. 
386.    No  jurisdiction  in  equity  to  enjoin  holding  of  an  election. 

887.  Injunction  not  allowed  to  restrain  counting  of  illegal  votea 

888.  But  may  issue  to  restrain  the  receipt  of  illegal  votes. 

389.  Will  not  lie  to  restrain  recording  of  abstract  of  votes  on  ground 

of  fraud. 

390.  Mandamus  in  State  court  to  compel  canvass  of  votes  cast  for 

Representative  in  Congress. 
891,  892.    Trial  by  jury  not  allowed. 

393.  Quo  warranto,  when  issued  at  common  law, 

394.  Mode  of  proceeding. 

395.  Right  of  elector  to  contest,  given  by  statute,  does  not  oust  juris- 

diction in  quo  warranto. 

396.  Quo  warranto  not  granted  merely  upon  showing  that  illegal 

votes  have  been  received. 
897-412.    Discussion  as  to  proper  remedy  in  various  casea 


280  KLBcnoNs.  [chap.  in. 

§  397-400.    Remedy  by  mandamus  and  by  quo  warranto. 

401.  Mandamus  to  compel  county  officer  to  keep  office  at  county  seat 

402,  403.    Mandamus  not  granted  when  there  is  another  adequate  and 

specific  remedy. 
404    Nor  to  oust  the  incumbent  of  an  office. 
405, 416.    Nor  to  control  the  performance  of  judicial  duties. 
406.     But  is  sometimes  granted  to  compel  swearing  in  of  person 

elected. 
406, 409.    Or  to  compel  recognition  of  person  adjudged  elected. 
406-411.    Will  lie  to  compel  discharge  of  purely  ministerial  duties. 
410.    Mandamus  to  compel  apj>ointment  in  certain  cases. 

412.  Also  to  compel  canvass  in  accordance  with  original  and  genu- 

ine returns. 

413.  No  answer  to  writ  to  show  that  returns  are  irregular. 

414.  Granting  or  refusal  of  writ  discretionary  with  the  court. 

415.  Office  of  the  writ  of  mandamus. 

417.  Decision  of  board  of  canvassers  conclusive  in  collateral  pro- 
ceeding. 

418, 419.  Certificate  of  election  issued  under  mandamus  not  conclu- 
sive. 

420.    "Will  lie  to  compel  registration  of  legal  voter. 

42L  Not  generally  issued  to  compel  certificate  showing  election  of 
particular  person. 

422, 42a    General  rules  stated. 

§  369.  Jurisdiction  to  hear  and  determine  cases  involv- 
ing the  right  to  an  office  is  vested  by  the  common  law  in 
courts  having  general  common-law  jurisdiction,  and  is  exer- 
cised, as  we  shall  hereafter  see,  through  the  agency  of  pro- 
ceedings in  quo  warranto.  By  the  statutes  of  the  several 
States,  numerous  special  tribunals  have  been  created,  and  a 
special  mode  of  proceeding  is  often  prescribed.  There  are 
besides  many  constitutional  and  statutory  provisions  making 
legislative  bodies  the  judges  of  the  election  and  qualifications 
of  their  own  members.^ 

It  is  often  a  question  whether  the  jurisdiction  of  such 
legislative  bodies  is  exclusive,  but  this  question  will  be 
determined  in  each  case  by  a  careful  consideration  of  the 
language  of  the  constitutional  or  statutory  provision  by 
which   it   is   conferred,  the   rule   being,  as  we  elsewhere 

1  [Baltimore  v.  Flederman,  67  Md.,  161 ;  Andrews  v.  Judge  of  Probate, 
74  Mich.,  278.] 


CHAP.  XII.]  CONTESTED   ELECTIONS.  281 

show,*  that  the  jurisdiction  of  the  courts  is  not  ousted  unless 
Buch  appears  to  have  been  the  plain  purpose.* 

The  jurisdiction  to  determine  the  right  of  a  person  exer- 
cising the  office  of  governor  raaj  be  by  statute  or  constitution 
vested  in  the  legislature;  and  where  it  is  thus  vested  exclu- 
sively, the  courts  will  of  course  have  no  jurisdiction  in  the 
premises.* 

§  3Y0.  The  mode  of  proceeding  when  a  contested  election 
case  is  before  a  legislative  body,  is  generally  prescribed  by 
statute,  or  by  the  rules  of  such  body.  In  the  absence  of  any 
such  statutory  regulation,  and  in  the  absence  of  any  standing 
rule  upon  the  subject,  the  proceedings  will  be  such  as  the 
body  itself  may  prescribe  for  each  particular  case,  and  they 
must  include  due  and  reasonable  notice  to  the  incumbent  of 
the  office,  and  a  fair  opportunity  for  adducing  proofs  and 
being  heard  on  both  sides.  And  no  notice  can  be  considered 
"  due  and  reasonable,"  which  does  not  inform  the  incumbent 
with  sufficient  certainty,  to  prevent  any  surprise  upon  the 
trial,  of  the  grounds  of  the  contest.  The  incumbent  will 
also  be  required  to  answer,  so  that  the  issue  may  be  under- 
stood, both  by  the  parties  themselves  and  by  the  body  which 
is  to  try  the  case. 

§  371.  The  House  of  Representatives  of  the  United  States, 
may  in  its  discretion  proceed  to  inquire  into  the  validity  of  the 
election  of  one  of  its  members,  without  any  formal  contest 
having  been  instituted.  A  contestant  is  not  absolutely  neces- 
sary.* If  circumstances  arise  which,  in  the  opinion  of  the 
House,  make  it  their  duty  to  investigate  the  right  of  a  mem- 
ber to  a  seat,  the  House  may  proceed  upon  its  own  motion. 
The  public  interests  being  involved  and  not  merely  the  per- 
sonal interests  of  the  incumbent  and  contestant,  it  follows  of 
course  that  the  death  of  the  contestant  or  his  withdrawal 

i§380. 

2  0'Farrall  v.  Colby,  2  Minn.,  180;  [State  v.  Tissot,  40  La.  Ann.,  598]. 

*  State  V.  Baxter,  28  Ark.,  129, 

<Reeder  v.  Whitiaeld,  1  Bart.,  185,  189. 


282  ELECTIONS.  [chap.  XII. 

from  the  contest,  or  an  attempt  to  compromise  between  the 
contestant  and  incumbent,  will  not  make  it  obligatory  on  the 
House  to  discontinue  the  investigation. 

§  372.  The  House  of  Representatives  has  shown  a  dis- 
position to  give  a  liberal  construction  to  the  acts  of  Congress 
in  relation  to  the  mode  of  conducting  cases  of  contested  elec- 
tions. They  are  construed  with  reference  more  to  the  sub- 
stantial rights  of  the  parties,  than  to  the  exact  wording  of 
the  statute.  And  it  may  be  expected  that  the  House  will 
continue  so  to  construe  these  statutes,  for  as  we  have  else- 
where shown,  they  are  not  absolutely  binding  upon  the 
House  in  any  case.  They  are  adopted  only  as  wholesome 
rules  of  practice,  and  of  course  a  tribunal  could  hardly  be 
expected  to  construe  with  great  strictness  a  statute  which  it 
may  in  its  discretion  disregard  altogether.  It  was  accordingly 
held  in  Kline  v.  Yerree,^  that  where  the  contestant  failed 
to  specify  with  particularity  the  grounds  of  his  contest,  he 
might  be  permitted  to  specify  such  grounds  orally.  This, 
however,  should  never  be  allowed  in  a  case  where  the  sub- 
stantial rights  of  the  sitting  member  might  thereby  be 
prejudiced.  As  for  example,  if  the  notice  is  so  vague  as  not 
to  put  the  sitting  member  upon  his  proper  defense,  and  as 
not  to  inform  him  with  reasonable  certainty  of  the  nature  of 
the  case,  which  he  is  expected  to  meet,  it  would  be  altogether 
improper  to  allow  such  notice  to  be  amended  and  perfected 
by  an  oral  or  even  by  a  written  specification,  made  at  the 
trial  and  after  the  closing  of  the  evidence  on  both  sides.  If 
in  such  a  case  any  amendment  could  be  allowed,  it  would 
necessarily  follow  that  an  extension  of  time  within  which  to 
take  testimony  should  be  ordered.  To  spring  a  new  issue 
upon  the  sitting  member,  of  which  he  has  had  no  notice,  and 
to  try  the  same  without  permitting  him  to  take  testimony 
touching  such  new  issue,  would  be  a  course  of  proceeding 
not  to  be  tolerated, 

1 1  Bart,  881. 


CHAP.  XII.]  CONTESTED   BLECTI0N8.  283 

§  3T3.  The  Houses  of  Congress  when  exercising  their 
authority  and  jurisdiction  to  decide  upon  "the  election,  re- 
turns and  qualifications"  of  members,  are  not  bound  by  the 
technical  rules,  which  govern  proceedings  in  courts  of  jus- 
tice. Indeed  the  statutes  to  be  found  among  the  acts  of  Con- 
gress regulating  the  mode  of  conducting  an  election  contest, 
in  the  House  of  Representatives,  are  directory  only,  and  are 
not  and  can  not  be  made  mandatory  under  the  Constitution. 
In  practice  these  statutory  regulations  are  often  varied  and 
sometimes  wholly  departed  from.  They  are  convenient  as 
rules  of  practice,  and  of  course  will  be  adhered  to,  unless  the 
House  in  its  discretion  shall  in  a  given  case  determine  that 
the  ends  of  justice  require  a  different  course  of  action.  They 
constitute  wholesome  rules  not  to  be  departed  from  without 
cause.*  It  is  not  within  the  constitutional  power  of  Con- 
gress by  a  legislative  enactment  or  otherwise,  to  control  either 
house  in  the  exercise  of  its  exclusive  right  to  "be  the  judge 
of  the  election,  returns  and  qualifications  of  its  own  mem- 
bers."* The  laws  that  have  been  enacted  on  this  subject, 
being  therefore  only  directory  and  not  absolutely  binding, 
would  have  been  more  appropriately  passed  as  mere  rules  of 
the  House  of  Kepresentatives,  since  by  their  passage  it  may 
be  claimed  that  the  House  conceded  the  right  of  the  Senate 
to  share  with  it  in  this  duty  and  power  conferred  by  the  Con- 
stitution. It  is  presumed,  however,  that  the  provisions  in 
question  were  enacted  in  the  form  of  a  statute,  rather  than 
as  a  mere  rule  of  the  House  in  order  to  give  them  more 
general  publicity  and  place  such  directions  as  were  thought 
proper  within  the  reach  of  whomsoever  they  might  concern. 
And  the  constant  practice  on  the  part  of  the  House  of  vary- 
ing these  regulations  has  been  regarded,  no  doubt,  as  a  suffi- 
cient protest  against  the  power  or  right  of  the  Senate  in  the 
premises. 

§  374.     In  all  legislative  bodies  which  have  the  power  to 

*  Williamson  v.  Sickles,  1  Bart.,  288. 
■  Constitution,  Art.  1,  Sec  6. 


284:  ELECTIONS.  [cHAP.  XH. 

judge  as  to  the  election  and  qualifications  of  their  own  mem- 
bers, the  rule  is  well  settled  that  when  the  right  of  the  sitting 
member  is  called  in  question,  the  body  will  look  beyond  the 
certificate  of  the  returning  officers,  and  determine  the  ques- 
tion upon  the  actual  merits.  The  certificate  is  jprima  facie 
evidence  only  in  such  a  controversy.  The  rule  is  the  same 
in  the  Courts,  and  in  trials  of  contested  election  cases  before 
a  jury.i  But  it  is,  as  elsewhere  shown,  2  equally  well  settled 
that  the  returning  board  or  officer  whose  duty  it  is  to  open 
returns,  ascertain  the  result,  and  issue  commissions,  can  not 
go  behind  the  returns.  And  if  a  party  wishes  to  go  behind 
the  returns  and  set  them  aside,  he  must  in  his  pleading  make 
specific  allegations,  showing  wherein  they  are  false.  ^ 

§  375.  On  the  trial  of  a  contested  election  before  a  board 
or  legislative  body,  the  members  returned  as  elected  are  not 
competent  to  vote  upon  the  question  of  the  validity  of  their 
own  election.*  This  rule  grows  out  of  the  doctrine  that  no 
man  should  have  a  voice  in  deciding  his  own  case.  At  com- 
mon law  it  is  held  that  even  an  act  of  parliament  can  not  re- 
quire anything  so  repugnant  to  natural  justice,  as  that  the 
same  person  may  be  a  party  and  a  judge. **  Out  of  this  prin- 
ciple grows  also  the  parliamentary  rule  which  forbids  a  mem- 
ber of  a  parliamentary  body  to  vote  upon  any  question  in 
which  he  is  directly  interested.  The  Court  in  Common- 
wealth v.  MoKloskey^^  does  not  put  it  too  strongly  when 
it  says  "for  a  man  to  constitute  himself  a  judge  in  his  own 
cause  is  indelicate  and  indecent."' 

§  376.    A  similar  question  arose  upon  the  trial  of  Andrew 

i§§  201,  385.  503,  508,  513,  515;  The  People  u  Vail,  20  Wend.,  121 
•§§261,262,265,266. 

•  State  eat  rd.  v.  Townsley,  56  Mo.,  107. 

•  Commmonwealth  v.  McKloskey,  2  Rawle,  369;  Bright.  Elec.  Cas.,196L 

•  Davy  «.  Savadge,  Hobart,  87;  S.  C,  12  Mad.,  687. 

•  Supra. 

^  To  the  same  effect  are  the  following  authorities :  Rice  «.  Foster,  4 
Harr.,  485;  Carson's  Case,  2  Lloyd's  Debates,  23;  Stockton's  Case,  U.  S. 
Sen.,  Cong'l  Qlobe,  1865-6,  page  1635;  Cushing's  Elec.  Cas.,  97. 


CHAP.  XII.]  CONTESTED   ELECTIONS.  285 

Johnson,  President  of  the  United  States,  upon  articles  of  im- 
peachment, where  the  Senate  of  the  United  States  permitted 
Hon.  B.  F.  Wade,  Senator  from  Ohio,  to  sit  as  one  of  the 
judges,  and  vote  upon  the  articles,  notwithstanding  the  fact 
that  being  President  ^ro  tempore  of  the  Senate,  and  ex-officio 
Yice-President  of  the  United  States,  he  would  have  become 
President,  had  the  President  been  convicted,  i  The  question 
of  Mr.  Wade's  right  to  be  sworn  as  a  member  of  the  Court 
of  Impeachment  was  raised  by  Senator  Hendricks,  of  Indi- 
ana, and  was  debated  at  some  length,  and  then  withdrawn, 
so  that  it  was  not  formally  decided.  If,  however,  it  had  been 
decided  in  his  favor,  it  could  only  have  been  upon  the  ground 
that  it  did  not  come  within,  or  that  it  constituted  an  excep- 
tion to,  the  rule  we  have  stated.  It  was  contended  that  the 
State  of  Ohio,  in  the  persons  of  her  two  Senators,  had  a 
right  to  be  heard  in  the  decision  of  the  great  case  of  im- 
peachment then  pending,  notwithstanding  the  contingent  in- 
terest which  one  of  the  Senators  had  in  the  result,  and  that 
the  importance  of  giving  to  each  State  an  equal  voice  in  that 
decision,  was  sufficient  to  justify  what  was  at  least  an  apparent 
departure  from,  or  an  exception  to,  that  rnle.  Whatever  may 
be  thought  of  the  soundness  of  this  argument,  it  is  sufficient 
for  our  present  purpose  to  say  that  it  does  not  involve  any 
question  as  to  the  correctness  of  the  general  rule,  that  no  man 
shall  be  a  judge  in  a  matter  in  the  decision  of  which  be  is 
directly  and  personally  interested. 

§  377.  Where  the  law  creates  a  board  of  canvassers  with 
power  to  determine  from  the  returns  who  is  elected  repre- 
sentative in  Congress,  the  only  remedy  open  to  a  person 
aggrieved  by  the  decision  of  such  board  is  by  a  contest  be- 
fore the  House  of  Representatives.  Mandamus  is  not  avail- 
able in  such  a  case.^  [Nor  will  mandamus  be  available  for 
one  claiming  a  seat  in  a  State  Legislature  where  the  Legis- 
lature is  empowered  to  judge  of  the  election  of  its  members.] ' 

12  Johnson's  Trial,  486-7,  496;  3  Id.,  860. 

2  0'Hara  u  Powell,  80  N.  C,  103, 

3  [Wheeler  v.  Board  of  Canvassers,  94  Mich.,  447.] 


286  ELECTIONS.  [chap,  XH. 

§  378.  In  many  of  the  States  there  are,  as  we  have  seen, 
statutes  creating  special  tribunals  with  limited  jurisdiction 
authorized  to  hear  and  determine  cases  of  contested  election. 
Such  tribunals,  though  not  courts  of  general  jurisdiction,  are 
necessarily  empowered  to  hear  and  determine  all  questions 
touching  the  regularity  and  legality  of  the  acts  of  the  oflScers 
and  persons  conducting  the  election  and  making  and  certify- 
ing the  returns  thereof.^  In  the  exercise  of  such  jurisdiction, 
such  courts  should  recognize  the  presumption  that  all  officers 
and  other  persons  engaged  in  conducting  elections  or  in  mak- 
ing returns  and  certifying  the  results  thereof,  acted  in  accord- 
ance with  the  law,  until  the  contrary  shall  be  specifically 
alleged  and  fully  proved.^ 

§  379.  Where  the  statute  creates  a  board  for  the  purpose 
of  determining  election  contests,  and  confers  upon  such  board 
exclusive  jurisdiction  in  such  cases,  the  courts  are  deprived 
of  jurisdiction  to  pass  upon  the  results  of  any  such  contests. 
But  in  such  a  case  the  proper  court  may,  by  mandamus, 
compel  such  board  to  organize  and  proceed  according  to  law 
to  the  discharge  of  its  official  duties.'  The  statute  of  Ken- 
tucky, under  which  this  case  arose,  provided  for  a  board  to 
be  composed  of  the  presiding  judge  of  the  County  Court, 
the  clerk  thereof,  and  the  sheriff.  It  also  provided  as  fol- 
lows: "but  if  either  is  a  candidate,  he  shall  have  no  voice 
in  the  decision  of  his  own  case.  If  from  any  cause  two  of 
the  before  named  persons  can  not,  in  whole  or  in  part,  act  in 
comparing  the  polls,  their  places  shall  be  supplied,"  etc. 
Under  this  statute  it  was  held  that  the  board  must  be  com- 
posed of  persons  entirely  free  from  any  interest,  and  that  the 
sheriff  and  coroner,  both  being  candidates,  could  not  act.  It 
would  be  a  dangerous  practice  to  permit  two  candidates  to 
act  upon  such  a  board,  for  although  neither  one  of  them 
could  vote  for  himself,  yet  they  might  vote  for  each  other. 

1  [State  V.  Slover  (Mo.),  34  S.  W.  Rep.,  1102.] 
*  Loomis  V.  Jackson,  6  W.  Va.,  613. 

'Batman  v.  Megowan,  1  Met  (Ky.),  533;  [People  v.  Board  of  Alder- 
men of  Buffalo,  65  Hun,  300]. 


CHAP.  XII.]  CONTESTED   ELECTIONS.  287 

They  might  thus  have  a  common  interest  to  subserve,  or  they 
might  combine  together  to  aid  each  other.  The  policy  of  all 
such  legislation  is  to  guard  against  improper  combinations, 
and  to  secure  just  and  impartial  decisions. 

§  380.  The  charters  of  most  municipal  corporations  con- 
tain a  provision  to  the  effect  that  the  council  or  other  legis- 
lative body  thereof  shall  be  "  the  judge  of  the  election  and 
qualification  of  its  own  members."  And  an  important  ques- 
tion has  arisen  as  to  whether  the  jurisdiction  of  a  city 
council,  or  other  similar  body,  is,  under  such  a  charter,  ex- 
clusive of  that  given  to  the  courts  of  justice  or  only  concur- 
rent with  it.  In  State  v.  Funck^^  it  was  held  that  inasmuch 
as  the  city  had  passed  no  ordinance  defining  the  method  by 
which  an  election  of  one  of  its  members  may  be  contested, 
the  claimant  could  resort  to  the  proceeding  provided  by 
statute  for  trying  title  to  a  public  office,  but  no  opinion  was 
expressed  as  to  what  the  law  would  be  in  a  case  where  pro- 
vision is  made  by  ordinance  for  such  trial.  An  examination 
of  the  adjudged  cases  in  this  country  will,  however,  show 
that  the  jurisdiction  of  the  courts  to  inquire  into  the  regu- 
larity and  validity  of  elections — a  jurisdiction  which  belongs 
to  all  courts  of  general  aud  original  jurisdiction — is  not  to  be 
regarded  as  taken  away  by  any  merely  negative  words. 
Their  jurisdiction  remains  unless  it  "  appears  with  unequiv- 
ocal certainty  that  the  legislature  intended  to  take  it  way."* 
It  follows  that  a  charter  provision  that  the  council  of  a  city 
"shall  be  the  judge  of  the  election,  qualifications  and  returns 
of  its  own  members,"  does  not  oust  the  courts  of  justice  of 
their  jurisdiction.  The  two  tribunals  have  concurrent  juris- 
diction in  such  a  case;  but  if  the  provision  be  that  no  court 
shall  take  cognizance  of  cases  of  this  character,  or  that  the 
council  shall  be  the  sole  or  the  exclusives  or  final  judge,  etc., 
then  the  courts  are  shorn  of  their  power  in  the  premises.* 

» 17  Iowa,  865. 

«  Dill,  on  Mun.  Corp.,  §  144. 

•  Upon  this  general  subject  see  the  learned  and  exhaustive  discussion 
by  Judge  Dillon,  in  his  work  on  Municipal  Corporations,  §§  139  to  148. 
See  also  State  v.  Fitzgerald,  44  Mo.,  425 ;  Commonwealth  v.  Garrigues, 


288  ELECTIONS.  [chap.  XII. 

The  true  doctrine  seems  to  be  that  a  special  remedy  given 
by  statute  is  cumulative,  and  not  exclusive  of  the  ordinary 
jurisdiction  of  the  courts,  unless  the  manifest  intention  of  the 
statute  be  to  make  such  special  remedy  exclusive,  and  such 
intention  must  be  manifested  by  affirmative  words  to  that 
effect.! 

§  381.  As  has  been  stated,  in  the  absence  of  special  con- 
stitutional and  statutory  provision  to  the  contrary,  the  com- 
mon law  courts  have  jurisdiction  of  all  cases  of  contested 
election.*  This  jurisdiction  has  been  held  in  Yirginia  not 
to  be  limited  to  cases  of  contest  between  competing  candi- 
dates. Under  the  law  of  that  State  an  election  may  be 
contested,  although  but  one  person  was  voted  for  at  the 
election.* 

§  383.  It  matters  not  how  high  and  important  an  office 
may  be,  an  election  to  it  must  be  by  the  majority  or  plural- 
ity of  the  legal  votes  cast.  And  if  any  one  without  having 
received  such  majority  or  plurality  intrudes  himself  into  an 
office,  whether  with  or  without  a  certificate  of  election,  the 
courts  have  jurisdiction  to  oust  him,  unless  some  other  tri- 
bunal has  been  clothed  with  this  power  to  the  exclusion  of 
the  courts.  The  question  arose  in  the  case  of  Governor 
Barstow  of  Wisconsin^  whether  the  person  occupying  the 
office  of  chief  executive  of  a  State  can  be  required  to  appeal 
before  the  courts  and  defend  against  another  claimant  for 
that  office.  It  was  contended  that  the  three  departments  of 
the  State  government  were  equal,  co-ordinate,  and  independ- 

28  Pa.  St.,  9;  Ewing  ».  Filley,  43  Pa.  St.,  384;  Commonwealth  ».  Leech, 
44  Pa.  St.,  332;  Cooley  on  Const.  Lim.,  276,  623,  634,  note;  Smith  t.  New 
York,  37  N.  Y.,  518;  People  v.  Mahaney,  13  Mich.,  481;  Ex  parte  Heath, 
3  Hill,  N.  Y., 42,  and  cases  cited  by  Cowan,  Judge;  Palmer  e.  Foley,  86 
Superior  Court,  (N.  Y.),  14 ;  Baxter  «.  Brooks,  29  Ark.,  173.  See  also 
Selleck  v.  Common  Council  40  Conn.,  359,  citing  the  following  cases :  2 
Rawle,  369;  16  Iowa,  369;  35  Pa.  St.,  263;  44  Id.,  332,  336,  341;  2  Ala., 
81;  15  Ohio  St.,  114;  14  Mich.,  48;  1  Mete,  (Ky.),  533;  9  Texas,  295. 

1  See  People  v.  Holden,  28  Cal.,  123;  People  v.  Jones,  20  Cal.,  50;  [State 
V.  Kempf,  69  Wis.,  470;  S.  C.  with  note,  in  17  Am.  &  Eng.  Corp.  Cases, 
388-394]. 

2  §369. 

^  Ex  parte  Ellyson,  20  Grat.,  10. 


CHAP.  Xn.]  CONTESTED   ELECTIONS.  289 

ent  of  each  other,  and  that  each  department  must  be  the 
judge  of  the  election  and  qualifications  of  its  own  members, 
subject  only  to  impeachment  and  appeal  to  the  people;  that 
therefore  the  question  as  to  who  is  entitled  to  the  office  of 
Governor,  can  in  no  case  become  a  judicial  question.  But 
this  doctrine  received  no  countenance  from  the  Court  to 
which  it  was  addressed,  and  it  is  believed  to  be  without  the 
support  of  any  judicial  authority.  If  adopted,  it  would 
leave  no  peaceable  and  constitutional  means  for  ousting  a 
successful  usurper  from  either  of  the  departments  of  the 
State  government.* 

§  383.  In  the  case  oi  Dennett^Petitioner,^  it  is  held  that 
under  a  statute  which  requires  that  "the  Governor  and  Coun- 
cil shall  open  and  compare  the  votes  returned,"  etc.,  the  act 
of  opening  and  comparing  such  votes  is  an  official  duty  to 
be  performed  by  the  executive  department.  And  it  was  ac- 
cordingly held  in  that  case  that  the  courts  of  the  State  could 
not  entertain  the  inquiry  whether  that  duty  had  been  cor- 
rectly or  incorrectly  performed,  and  a  mandamus  to  compel 
the  Governor  and  Council  to  certify  the  election  of  the 
petitioner  to  the  office  of  county  commissioner,  was  refused, 
upon  the  ground  that  the  judiciary  could  not  control  the  ex- 
ecutive department  of  a  State,  in  the  performance  of  its 
official  functions.^  It  is  very  clear  that  this  ruling  was  cor- 
rect, for  mandamus  will  not  lie  to  control  the  action  of  any 
board  or  officer,  in  determining  the  result  of  an  election. 
But  it  does  not  follow  that,  because  the  executive  of  the 
State  and  the  council  are  constituted  the  returning  board, 
their  conclusions  are  final.  If  a  board  composed  of  the  gov- 
ernor and  council  shall  commit  an  error  either  by  accident  or 
design,  or  by  a  misconstruction  of  the  law,  in  determining 
the  result  of  an  election,  the  party  injured  can  undoubtedly 
have  his  remedy  in  the  courts  of  justice,  the  same  as  if  the 
result  had  been  declared  by  a  board  composed  of  other  persons. 

1  Cooley's  Const  Lim.,  624-5,  note  1. 

2  32  Maine,  508. 

»[Corbitt  V.  McDaniel,  77  Ga.,  544.] 
19 


290  ELECTIONS.  [CHA.P.  XII. 

§  384.  In  a  proper  case  the  Supreme  Court  of  Wiscoasin 
will  require  the  board  of  State  canvassers  to  determine  in 
accordance  with  law  which  one  of  the  candidates  at  an  elec- 
tion in  that  State,  for  the  office  of  representative  in  the  Con- 
gress of  the  United  States,  is  entitled  to  the  certificate  of 
election.  This  does  not  contravene  the  constitutional  power 
of  the  House  to  determine  its  members'  right  to  the  office; 
the  court  merely  deciding  whether  the  return  made  to  such 
board,  of  votes  cast  in  a  county,  should  be  included  in  their 
canvass  and  statement.* 

§  385.  The  courts  will  not  undertake  to  decide  upon  the 
right  of  a  party  to  hold  a  seat  in  the  legislature,  where  by 
the  constitution  each  house^is  made  the  judge  of  the  elec- 
tion and  qualifications  of  its  own  members;  but  a  court  may 
by  mandamus,  compel  the  proper  certifying  officers  to  dis- 
charge their  duties  and  arm  the  parties  elected  to  such  legis- 
lative body  with  the  credentials  necessary  to  enable  them  to 
assert  their  rights  before  the  proper  tribunal.^  And,  inas- 
much as  canvassing  and  returning  officers  act  ministerially 
and  have  no  power  to  go  behind  the  returns,  or  inquire  into 
the  legality  of  votes  cast  and  returned,  a  court  will  by  man- 
damus compel  them  to  declare  and  certify  the  result  as  shown 
hy  the  returns^  because  that  is  their  plain  duty;  but  the 
award  of  a  certificate  of  election  under  such  mandate,  will 
not  conclude  the  legislative  body  in  determining  the  elec- 
tion.' 

§  386.  Unless  especially  authorized  by  statute  a  court  of 
chancery  has  no  power  to  enjoin  the  holding  of  an  elec- 
tion ;  *  and  it  has  also  been  held  that  such  a  court  has  no 

1  State  u  Board  of  State  Canvassers,  36  Wis.,  498. 

2  [State  u  Tan  Camp,  36  Neb.,  91.] 

'  O'Farrall  v.  Colby,  2  Minn.,  180.  As  to  the  power  of  courts  of  justice 
to  compel,  by  mandamus,  a  complete  and  legal  canvass,  by  the  proper 
canvassing  officers,  of  the  votes  cast  at  an  election,  see  People  v.  Nord- 
heim,  99  111.,  553.  [The  registrar  of  elections  under  the  Code  of  Louisiana 
is  a  constitutional  executive  officer  and  not  exempt  from  judicial  au- 
thority to  compel  him  by  mandamus  to  perform  the  speciiic  duties  im- 
posed on  him  by  statute.  State  v.  Houston,  40  La.  Ann.,  393;  4  S.  Rep., 
50.] 

*  People  V.  Galesburg,  43  111.,  435. 


CHAP.  XII.]  CONTESTED   ELECTIONS.  291 

power  to  try  a  contested  election  even  where  the  statute  has 
provided  no  mode  of  contesting,  i  And  the  same  court  has 
held  that  a  writ  of  injunction  issued  to  restrain  the  olhcers 
of  an  election  from  holding  an  election,  or  to  restrain  a  board 
of  canvassers  from  canvassing  the  returns  of  an  election,  and 
declaring  the  result,  is  absolutely  void  for  want  of  power  in 
the  court,  and  that  such  officers  can  not  be  punished  for  dis- 
obedience thereto. 3  The  doctrine  announced  is  that  courts 
of  equity  have  no  inherent  power  to  try  contested  elections, 
and  can  only  exercise  such  power  where  it  has  been  con- 
ferred by  express  enactment,  or  necessary  implication  there- 
from. * 

§  387.  It  has  been  held  as  already  seen,*  that  a  court  of 
chancery  should  not  interfere  by  injunction  to  restrain  the 
officers  of  election  from  counting  illegal  votes,  or  from 
issuing  certificates  of  election  to  persons  not  entitled  to  them. 
The  reason  is  that  a  court  of  chancery  will  not  interfere 
collaterally  and  in  advance  of  a  contest  to  pass  upon  the 
claime  of  conflicting  claimants  of  an  office."  In  Miller  y. 
Lowery,^  the  Court  of  Common  Pleas  of  Philadelphia 
granted  an  injunction  to  restrain  a  candidate  who  had 
received  a  certificate  of  election,  regular  upon  its  face,  from 
taking  possession  of  the  office,  upon  the  ground  that  the 
certificate  had  been  fraudulently  issued.' 

»  Moore  v.  Hoisington,  31  111.,  243. 

«  Walton  B.  Develing,  6t  111.,  201;  Dickey  «.  Reed,  78  111.,  261. 

»  And  see  Peck  v.  Weddell,  17  Ohio  St.,  271 ;  State  v.  Taylor,  15  Id., 
114;  Commonwealth  ».  Garrigues,  28  Pa.  St.,  9 ;  41  Id.,  396 ;  Moulton  «. 
Reid,  54  Ala.,  330;  Pink  v.  Barr,  14  Phila.,  154. 

*§370. 

»  Lawrence  v.  Knight,  1  Brewst.,  67,  69;  Bright.  Elect.  Cas.,  617.  And 
to  the  same  effect  is  Hulseman  v.  Rems,  41  Pa.  St.,  396;  Moore  v.  Hos- 
ington,  31  111.,  243.  See,  also,  Peck  v.  Weddell,  17  Ohio  St.,  271 ;  Umstead 
V.  Buskirk,  15  Ohio  St.,  114;  Commonwealth  v.  Garrigues,  28  Pa.  St.,  9; 
State  V.  Steers,  44  Mo.,  223;  Dickey  v.  Reed,  78  111..  261;  Jones  v.  Black, 
43  Ala.,  540;  [Ex  parte  Ivey,  26  Fla.,  537].  But  this  ruling,  though  evi- 
dently sound  and  supported  by  the  weight  of  authority,  has  not  been 
altogether  uniform. 

8  5  Phila.,  202. 

1  And  see,  also,  Peck  v.  Weddell,  17  Ohio  St.,  271. 


292  ELECTIONS.  [chap.  XH. 


§  388.  Where  the  application  is  for  an  injunction  to 
restrain  the  officers  of  election  from  receiving  votes  from  a 
class  of  persons  who  are  clearly  disqualified,  the  rule  that 
chancery  will  not  interfere  in  matters  of  contested  election 
does  not  apply,  and  an  injunction  may  well  be  granted,  for 
in  such  a  case,  the  object  would  not  be,  to  decide  prematurely 
and  collaterally  a  contested  election  case.  Mcll/vain  t. 
Christ  Churchy  of  Beading,  i 

§389.  An  injunction  will  not  lie  to  restrain  the  proper 
officer  from  recording  the  abstract  of  the  vote  of  a  county, 
upon  the  question  of  removing  the  county  seat,  because  of 
frauds  and  illegalities  in  conducting  the  election.  The 
remedy  for  such  wrongs  is  by  means  of  a  contest,  as  provided 
by  law.*  An  adequate  remedy  will  always  be  found  either 
at  law  or  in  equity,  for  frauds  perpetrated  against  the  purity 
of  elections.  If  a  result  has  been  secured  by  fraud,  and 
the  statute  has  provided  no  mode  of  redress,  it  by  no  means 
follows  that  no  redress  can  be  had.  The  right  of  any  person 
claiming  to  exercise  any  public  function  or  authority  under 
a  fraudulent  election,  may  be  tested  by  proceedings  in  quo 
warranto  under  the  principles  of  common  law. 

§  390.  It  is  no  objection  to  a  proceeding  in  mandamus  to 
compel  a  board  of  canvassing  officers  to  canvass  and  return 
the  votes  cast  for  representative  in  Congress,  that  the  same 
is  instituted  in  a  State  Court.  The  proceeding  is  one  to 
compel  State  officers  to  perform  their  ministerial  duties,  and 
the  fact  that  these  duties  appertain  to  the  election  of  a 
representative  in  Congress,  does  not  deprive  State  courts  of 
their  jurisdiction.* 

§  391.  Under  the  statute  of  Pennsylvania,  conferring 
jurisdiction  upon  the  Court  of  Quarter  Session,  to  hear  and 
determine  election  contests,  and  making  its  decision  final  and 
conclusive,  it  was  held  that  an  issue  to  a  jury  could  not  be 

1 28  Legal  Int.,  126. 

2  Peck  V.  Weddell,  17  Ohio  St.,  271;  State  v.  Berry,  14  Id.,  816;  [Bynxim 
V.  Commissioners,  101  N.  C,  412]. 
»  State  u  Randall,  35  Ohio  St.,  64 


CHAP.  XII.]  CONTESTED    ELECTIONS.  293 

directed  to  try  the  question  of  an  alleged  fraud  in  an  election. 
The  chief  reason  given  was  that  a  trial  by  jury  if  conceded  to 
one  contestant,  must  be  conceded  to  all,  and  that  "delay 
must  take  place  in  preparing  and  setting  down  such  an  issue 
for  trial;  after  trial  of  the  most  tedious  and  expensive  kind 
the  jury  may  disagree,  (one  dissenter  from  the  rest  being 
adequate  to  produce  that  result,)  and  their  consequent  dis- 
charge. Another  and  another  trial  may  follow  with  like 
results,  until  one  of  the  parties  weary  with  delay,  or  bank- 
rupt in  prosecuting  his  rights  abandons  them  in  despair," 
and  by  bills  of  exceptions  and  writs  of  error  the  proceedings 
might  be  still  further  prolonged.  This  would  operate  most 
unjustly  to  the  contestant,  if  in  the  end  it  should  appear  that 
he  was  rightly  entitled  to  the  office.* 

§  392.  The  same  point  was  decided  in  the  same  way,  by 
the  Supreme  Court  of  Pennsylvania,  in  Ewing  v.  Filley.^ 
And  in  that  case  the  Court  also  held  that  an  act  providing 
for  the  trial  of  a  case  of  contested  election  without  the 
intervention  of  a  jury,  is  not  for  that  reason  unconstitutional. 
"  It  is  not,"  says  Lowrie,  C.  J.,  in  that  case,  "  in  the  act 
of  organization  of  the  State,  nor  in  the  perpetuation  of  its 
organic  succession,  but  in  the  administration  of  rights  under 
the  organization,  that  the  constitution  secures  the  trial  by 
jury.  The  jury  is  the  proper  element  in  the  determination 
of  rights  which  need  enforcement  by  means  of  the  State 
organization;  but  there  is  a  much  larger  popular  element  in 
our  elections — the  votes  of  all  the  people;  and  all  our  political 
practice  shows  that  we  have  not  considered  a  jury  an  essential 
means  in  deciding  contested  elections  of  public  officers.* 

The  contrary  doctrine  was  asserted  in  People  v.  Cicott,* 
but  that  case  seems  to  stand  quite  alone  and  can  not  be 
taken  as  a  correct  exposition  of  the  law  upon  the  subject. 

1  Kneass'  Case,  2  Parsons,  599;  S.  C,  Bright.  Elec.  Cas.,  260.  [A  partj 
to  a  contested  election  case  has  no  right  to  a  jury  trial.  Pedigo  v. 
Grimes,  113  Ind.,  148,  and  note  to  same  case  in  20  Am.  &  Eng.  Corp. 
Cases,  42;  Hughes  u  Holman,  23  Oreg.,  481.] 

2  43  Pa.  St.,  389. 

»  Williamson  v.  Lane,  52  Tex,,  335;  Newton  v.  Newell,  26  Minn.,  629; 
Commonwealth  v.  Leech,  44  Pa.  St.,  332. 
*  16  Mich.,  282. 


294  ELECTIONS.  [chap.  XII. 

§  393.  At  common  law  the  proper  remedy  aganist  i 
person  claiming  to  exercise  an  office,  and  who  was  believed  to 
be  not  entitled  thereto,  was  by  the  writ  of  quo  warranto, 
which  was  issued  upon  proper  application  for  the  purpose  of 
inquiring  into  the  authority  of  such  person,  and  ousting  him 
from  such  office,  in  case  no  authority  should  be  shown.  In 
modern  practice  an  information  in  the  nature  of  a  quo  war- 
ranto, is  resorted  to,  in  the  absence  of  any  statutory  proceed- 
ing.* And  in  fact  where  there  are  special  proceedings 
authorized  by  statute,  they  partake  of  the  nature  and  retain 
most  of  the  substance  of  the  common  law  proceeding  by  quo 
warranto. 

§  394.  According  to  the  common  law  of  England  the  in- 
formation in  quo  warranto,  was  filed  in  the  Court  of  King's 
Bench,  by  the  Attorney  General.  In  this  country  it  should 
be  filed  by  a  law  officer  of  the  government,  and  presented  to 
the  Court  having  the  necessary  common  law  jurisdiction. 
The  proceeding  was  originally  of  a  quasi  criminal  character, 
being  intended  to  secure  the  punishment  of  the  usurper  by  a 
fine  as  well  as  to  oust  him,  or  seize  the  office  or  franchise  for 
the  crown.  But  "  it  hath,"  says  Blackstone,  "long  been  ap- 
plied to  the  mere  purposes  of  trying  the  civil  right,  seizing 
the  franchise,  or  ousting  the  wrongful  possessor;  the  fine  being 
nominal  only." 

§  395.  A  statute  which  confers  upon  any  elector  of  the 
proper  county  the  right  to  contest,  at  his  option,  the  election 
of  any  person  who  has  been  declared  to  be  duly  elected  to  a 
public  office,  to  be  exercised  in  and  for  such  county,  does  not 
oust  the  jurisdiction  of  the  proper  court,  on  information  in 
the  nature  of  a  quo  warranto,  to  inquire  into  the  authority 
of  any  person  who  assumes  to  exercise  the  functions  of  a  pub- 
lic office  or  franchise,  and  to  remove  him  therefrom  if  he  be 
a  usurper,  having  no  legal  right  thereto.'  "  The  two  reme- 
dies are  distinct,"  says  the  court  in  that  case,   "  the  one  be- 

>  Walker's  American  Law,  p.  566.    Blackstone's  Comm.,  Vol.  8,  p.  ,268. 
•  People  «.  Holden,  28  Cal.,  123. 


CHAP.  Xri.]  CONTESTED    ELECTIONS.  293 

longing  to  the  elector  in  his  individual  capacity,  as  a  power 
granted,  and  the  other  to  the  people,  in  the  right  of  their 
sovereignty."  ^ 

§  396.  In  Ex  parte  Murphy '  it  was  held  that  the  mere 
circumstance  that  improper  votes  were  received  at  an  elec- 
tion will  not  vitiate  it.  In  that  case,  one  candidate  had  re- 
ceived a  majority  of  two  votes,  and  it  was  charged  that  two 
illegal  votes  were  cast,  but  there  was  no  allegation  that  they 
were  cast  for  the  candidate  having  the  majority.  The  mo- 
tion for  quo  warranto  was  denied,  the  Court  saying,  "  For 
all  that  appears  the  spurious  ballots  were  for  the  ticket  which 
was  in  the  minority."  This  ruling,  however,  should  be  ex- 
plained and  probably  qualified.  If  it  goes  no  further  than  to 
hold  that  the  information  in  that  particular  case  was  insuf- 
ficient to  warrant  the  allowance  of  a  quo  warranto,  it  may  be 
accepted  as  correct,  but,  if  it  is  construed  as  asserting  the 
doctrine,  that  in  all  cases  it  is  necessary  to  show  that  the 
person  declared  elected  was,  in  fact,  defeated,  before  the  elec- 
tion can  be  set  aside,  then  it  goes  too  far.  An  election  may 
be  set  aside,  declared  void,  and  a  new  election  be  ordered, 
upon  the  introduction  of  such  proof  as  renders  it  impossible 
to  determine  who  has  been  chosen  by  a  fair  majority,  but  the 
contestant  can,  in  no  case,  be  declared  entitled  to  the  oflice 
until  he  shows,  afiirraatively,  that  he  has  received  a  majority 
of  the  legal  votes  cast. 

§397.  It  is  proper  at  this  point  to  discuss  the  distinctions 
between  cases  wherein  quo  warranto  should  be  resorted  to 
and  those  where  mandamus  will  lie. 

Mandamus  is  not  the  proper  remedy  for  obtaining  posses- 
sion of  an  ofiice,  or  for  ousting  one  who  usurps  an  oflSce. 
There  are  cases  perhaps  where  there  is  no  doubt  as  to  the 
duty  of  a  public  ofiicer  to  issue  a  commission  to  a  person 
elected,  and  in  which,  therefore,  a  mandamus  may  issue  to 
compel  the  performance  of  that  duty.     But  when  it  is  a  ques- 

*  See  also,  People  -o.  Jones,  20  Cal.,  50. 
»  7  Cowen,  153. 


296  ELECTIONS.  [chap,  XII. 

tion  of  any  doubt,  a  court  should  not  interfere  by  mandamus, 
but  should  put  the  party  in  the  first  instance  to  an  informa- 
tion in  the  nature  of  a  quo  warranto,  or  to  such  remedy  as 
may  be  specifically  provided  by  statute.^ 

§  398.  A  case  may  have  arisen  in  which  a  court,  having, 
in  a  proper  action,  decided  upon  the  result  of  an  election, 
may  have  issued,  upon  proper  application,  a  writ  of  mandamus 
to  compel  the  proper  election  oflicers  to  issue  a  certificate  of 
election  in  accordance  with  that  decision.^  But,  ordinarily, 
the  writ  of  mandamus  will  only  issue  to  compel  a  certificate 
to  issue  upon  the  returns,  and  in  accordance  with  the  result 
as  it  appears  therefrom.  When  it  becomes  necessary  to  go 
beyond  the  returns  and  consider  questions  touching  the  le- 
gality of  the  election,  or  of  fraud,  illegal  voting  or  the  like, 
then  mandamus  is  not  the  proper  action,  and  it  is  necessary 
to  resort  to  quo  warranto,  or  to  such  statutory  proceeding  as 
may  be  provided  in  such  cases.' 

§  399.  Mandamus  will  lie  to  compel  a  board  of  returning 
oflBcers  to  declare  the  result  *  and  issue  certificates  in  accord- 
ance therewith,  where  these  duties  are  by  statute  required 
of  such  board.  As  such  duties  are  purely  ministerial,  the 
board  may  be  compelled  by  mandamus  to  perform  them.* 
And  in  "West  Yirginia  it  has  been  held  that  the  circuit  court 
can  by  mandamus  compel  a  board  of  supervisors  of  a  county 
to  issue  certificates  of  election  to  township  oflicers  adjudged 
by  the  court  to  have  been  duly  elected  at  a  valid  election.' 
But  of  course  this  latter  case  must  have  been  one  in  which 
the  election  returns,  and  all  proper  evidence  as  to  the  result, 

1  Commonwealth  v.  Commissioners,  5  Rawle,  75.  [A  writ  of  manda- 
mus will  issue  only  when  the  right  to  require  the  performance  of  the 
desired  act  is  clear.    State  v.  Bowman,  45  Neb.,  752.] 

2  [Mandamus  will  lie  to  compel  inspectors  of  election  to  make  a  true 
return.    Gleason  v.  Blanc,  14  Misc.  R,  620.] 

8  State  V.  Churchill,  15  Minn.,  455. 

*  [But  not  to  declare  any  particular  result.    State  v.  Thrasher,  77  Ga., 
671.] 
» Clark  V.  McKenzie,  7  Bush  (Ky.),  523;  [Enos  v.  State,  131  Ind.,  560]. 
«  Burke  v.  Monroe  Co.,  4  W.  Va.,  371. 


CHAP.  XII,]  CONTESTED   ELECTIONS.  297 

came  legitimately  before  the  court  for  consideration.  If 
otherwise,  the  case  is  not  good  authority,  for  it  is  quite  well 
settled  that  mandamus  will  not  lie  to  try  and  finally  deter- 
mine the  title  to  an  office. 

§  400.  It  has  been  held  in  Massachusetts  that  mandamus 
will  not  lie  to  compel  a  board  of  examiners  of  election  re- 
turns to  count  certain  votes  containing  the  initial  letter  only 
of  the  Christian  name  of  a  candidate  with  other  votes  con- 
taining his  name  in  full.  This,  upon  the  ground  that  the 
duties  of  the  board  under  the  statute  of  that  State  are  purely 
ministerial,  and  it  cannot  receive  or  consider  (as  a  court  may) 
any  evidence  of  extrinsic  circumstances,  but  is  confined  to 
the  record  of  votes  returned  and  laid  before  it.^ 

§  401.  Where  a  statute  requires  a  county  office  to  be  lo- 
cated at  the  county  seat,  mandamus  will  lie  to  compel  the 
officer  to  open  and  hold  his  office  there.  And  it  is  no  an- 
swer to  such  a  proceeding  to  show  that  there  is  a  dispute  as 
to  which  of  two  or  more  places  is  the  county  seat.  The 
court  is  bound  to  inquire  and  determine  where  the  county 
seat  is,  even  if  in  order  to  this  it  may  be  necessary  to  deter- 
mine as  to  the  legality  or  result  of  an  election  held  to  settle 
the  question  of  the  location  or  removal  of  the  same.^ 

§  402.  It  is  well  settled,  as  a  general  rule,  that  the  writ 
of  mandamus  will  not  be  granted  in  any  case  where  another 
adequate  and  specific  remedy  is  provided,^  and  it  follows  that 
the  cases  are  rare  in  which  the  courts  will  interfere  by  man- 
damus with  questions  touching  the  title  to  and  possession  of 
a  public  office.  The  courts  have  almost  uniformly  refused  to 
grant  the  writ  of  mandamus  in  cases  of  this  kind,  upon  the 

1  Clark  V.  Hampden  Co.  Ex's,  126  Mass.,  283. 

2  The  State  v.  Commissioners,  35  Kan.,  640;  [State  v.  Hamil,  97  Ala.,  107. 
But  in  Nebraska  it  has  been  held  that  on  an  application  for  a  mandamus 
to  compel  the  removal  of  a  county  seat  in  pursuance  of  the  declared  re- 
sult of  a  canvass  of  the  vote  on  the  question  of  relocation,  the  court 
cannot  go  behind  the  returns  and  investigate  issues  of  fraud  and  ille- 
gality in  the  matter  of  conducting  the  election.  State  v.  Roper,  46 
Neb.,  730]. 

3  [Scoville  V.  Calhoun,  76  Ga.,  263.] 


298  ELECTIONS.  [chap.  XII. 

ground  that  an  information  in  the  nature  of  a  quo  warranto 
is  the  appropriate  remedy  for  testing  the  title  to  an  office,  as 
well  as  for  determining  the  right  to  the  possession  thereof. 
"Where  a  party  is  in  possession  of  an  office  as  its  actual  in- 
cumbent, exercising  its  functions  de  facto  and  under  color  of 
right,  mandamus  will  not  lie  to  compel  him  to  vacate  and 
give  place  to  another.  In  all  such  cases  the  party  aggrieved 
will  be  left  to  his  common-law  remedy  by  quo  warranto,  or 
to  such  other  remedy  of  like  nature  as  may  be  specifically 
provided  by  statute.^  And  the  same  doctrine  is  maintained 
in  the  courts  of  England.^  A  few  cases  may  be  found  which 
seem  to  hold  a  contrary  doctrine.'  But  it  is  safe  to  say  that 
the  rule  as  above  stated  is  sustained  by  the  overwhelming 
weight  of  authority. 

§  403.  And  the  rule  is  quite  as  well  sustained  by  reason. 
Mr.  High,  in  his  excellent  work  on  Extraordinary  Eemedies, 
well  says :  *  "  Aside  from  the  existence  of  another  adequate 
remedy  by  proceedings  in  quo  warranto  to  test  the  title  of 
an  incumbent  to  his  office,  it  is  a  sufficient  objection  to  re- 
lief by  mandamus  in  such  a  case,  that  the  granting  of  the 
writ  would  have  the  effect  of  admitting  a  second  person  to 
an  office  already  filled  by  another,  both  claiming  to  be  duly 
entitled  thereto,  and  resort  must  still  be  had  to  further  pro- 
ceedings to  test  the  disputed  title.  And  the  rule  finds  still 
further  support  in  the  fact  that  ordinarily  the  determina- 
tion of  the  question  of  title  to  a  disputed  office  upon  pro- 
ceedings in  mandamus  would  be  to  determine  the  rights  of 

'High  on  Extr.  Leg.  Rem.,  §  49;  People  u  Corporation  of  New  York, 
3  Johns.  Cas.,  79;  People  u  Supervisors  of  Green  Co.,  12  Barb.,  217; 
Anderson  v.  Colson,  1  Neb.,  172;  Bonner  v.  State,  7  Ga.,  473;  St.  Louis 
Ca  Court  v.  Sparks,  10  Mo.,  118;  State  v.  Rodman,  43  Mo.,  256;  People  v. 
Detroit,  18  Mich.,  338;  Underwood  v.  White,  27  Ark.,  382;  Peoples.  For- 
quer,  Breese,  68;  State  v.  Dunn,  Minor  (Ala.),  46;  Commonwealth  v. 
Commissioners,  6  Whart.,  476. 

2  King  w.  Mayor  of  Colchester,  2  T.  R,  360;  Queen  v.  Derby,  7  Ad.  «fc 
E.,  419;  King  v.  Winchester,  Id.,  215. 

3  Conlin  v.  Aldrich,  98  Mass.,  557;  Harwood  v.  Marshall,  9  Md.,  8a 
*§50 


CHAP.  XII.]  CONTESTED   ELECTIONS.  ^99 

the  de  facto  incumbent  in  a  proceeding  to  which  he  is  not  a 
party." 

§  404.  "  Where  the  office  is  already  filled,"  says  the  court 
in  People  v.  Corporation  of  New  Yorlc,  supra^  "  by  a  per-' 
son  who  has  been  admitted  and  sworn  and  is  in  by  color  of 
right,  a  mandamus  is  never  issued  to  admit  another  person, 
because  the  corporation  being  a  third  party  may  admit  or 
not,  at  pleasure,  and  the  rights  of  the  party  in  office  may  be 
injured  without  his  having  an  opportunity  to  make  a  de- 
fense. The  proper  remedy  in  the  first  instance  is  by  an  in- 
formation in  the  nature  of  a  quo  warranto,  by  which  the 
rights  of  the  parties  may  be  tried." 

§  405.  While  it  is  well  settled  that  mandamus  will  not 
lie  for  the  purpose  of  settling  disputed  questions  concerning 
title  or  possession  of  an  office,  cases  have  arisen  in  which 
this  writ  has  been  granted  to  compel  the  proper  officer  to 
swear  in  the  person  elected  to  an  office.  This  is  simply  to 
compel  the  qualifying  officer  to  discharge  a  duty  enjoined 
upon  him  by  law,  and  is  therefore  within  the  proper  scope 
of  this  writ.^ 

§  406.  But  it  is  not  competent,  or  at  least  not  proper,  for 
a  court,  in  the  exercise  of  this  power  to  compel  the  swearing 
in  of  the  person  elected,  to  go  further  and,  in  cases  of  dis- 
puted and  contested  elections,  to  compel  the  qualifying  offi- 
cer to  swear  in  either  one  of  such  parties  before  a  judgment 
of  ouster  has  been  rendered  in  a  proper  proceeding.  "  In 
all  cases  of  doubt,"  says  Mr.  High  in  his  work  above  cited,'' 
"as  to  the  election  of  officers,  where  the  validity  of  the 
election  is  the  chief  point  in  controversy,  the  courts  will 
not  interfere  by  mandamus,  but  will  put  the  aggrieved 
party  in  the  first  instance  to  an  information  in  the  nature 
of  a  quo  warranto.  And  before  a  mandamus  will  be  granted 
to  compel  the  recognition  of  one  as  an  officer,  the  court 

iKingu  Clark,  2  East,  70;  Churchwarden's  Case,  Carth.,  118:  King 
«.  Rees,  Id.,  393;  Ex  parte  Heath,  3  Hill,  43;  High  on  Extr.  Rem.,  §  53, 
and  cases  cited. 

«§53. 


300  ELECTIONS.  [chap.  XIL 

will  require  that  judgment  of  ouster  shall  have  been  given 
against  the  incumbent  de  factoP  ^ 

§  407.  The  Supreme  Court  of  Massachusetts,  in  Ellis  v. 
County  Commissioners,^  held  that  where  the  law  imposed 
upon  the  county  commissioners  the  duty  of  certifying  as  to 
who  received  the  highest  number  of  votes  for  county  treas- 
urer, mandamus  will  lie  to  compel  such  commissioners  to 
certify  that  the  petitioner  had  a  majority  of  such  votes  (if 
such  was  the  fact),  although  another  person  had  been  declared 
by  them  to  be  county  treasurer,  and  put  in  possession  of  the 
office.  This  was  a  case,  however,  which  turned  upon  a  single 
question  of  law,  and  all  the  facts  were,  by  the  return  to  the 
alternative  writ,  fully  stated.  And  while  holding  that  the 
court  might,  if  satisfied  that  petitioner  actually  received  a 
majority  of  all  the  legal  votes  cast,  command  the  board  to  so 
certify,  the  opinion  is  clearly  intimated  that  after  obtaining 
such  a  certificate  it  would  be  necessary  to  resort  to  quo  war- 
ranto in  order  to  remove  the  incumbent  from  the  office  and 
place  the  petitioner  in  possession ;  and  it  is  therefore  exddent 
that  the  latter  action  is,  in  the  absence  of  statutory  regula- 
tions, the  more  appropriate  remedy,  and  that  it  should  be 
adopted  in  the  first  instance.  Indeed,  it  is  impossible  to 
reconcile  this  case  with  the  general  current  of  authority  upon 
this  subject,  and  it  is  quite  clear  that  no  action  should  be  had 
in  a  mandamus  proceeding,  to  which  the  incumbent  of  the 
office  is  not  a  party,  which  may  directly  or  indirectly  affect 
his  rights  or  prejudge  his  claims. 

1  Commonwealth  v.  County  Commissioners,  5  Rawle,  75,  Where  elec- 
tion officers  act  in  a  ministerial  and  not  in  a  judicial  character  —  that 
is  to  say,  in  cases  where  they  exercise  no  discretionary  powers  —  they 
are  subject  to  be  compelled  to  proceed  and  perform  their  duties  by 
mandamus.  And  it  has  been  held  that  mandamus  will  lie  to  compel 
the  granting  of  a  certificate  of  election  to  a  person  legally  elected 
when  the  same  is  unlawfully  withheld.  State  v.  The  Judge,  etc.,  13 
Ala.,  805,  Mandamus  will  not  be  granted  to  compel  the  canvass  of  the 
votes  cast  at  an  election  which  was  held  without  authority  of  law. 
State  V.  Whittemore,  11  Neb.,  175. 

2  2  Gray,  370. 


CHAP.  XII.]  CONTESTED   ELECTIONS.  301 

§  408.  While  mandamus  will  not  lie  to  compel  admission 
to  a  disputed  office,  or  to  determine  disputed  questions  of 
title  to  an  office,  it  is  sometimes,  as  already  intimated,  the 
proper  remedy  for  a  failure  of  election  officers  to  perform 
certain  merely  ministerial  duties  in  connection  with  elec- 
tions.* By  it  the  proper  board  or  officer  can  be  compelled 
to  canvass  the  election  returns ;  to  determine  and  declare  the 
result;  to  issue  certificates  to  the  persons  entitled  thereto. 
The  writ  may  also  be  sought  merely  for  the  purpose  of 
swearing  in  the  person  elected.^  But  the  effect  of  a  man- 
damus to  swear  one  into  an  office  is  not  to  create  or  confer 
any  title  not  already  existing.^ 

§  409.  It  is  also  clear  that  after  there  has  been  a  judg- 
ment of  ouster  given  against  the  incumbent  ds  facto,  in 
a  regular  proceeding  by  quo  warranto,  a  mandamus  will  be 
granted  to  compel  the  recognition  of  such  person  as  such 
officer  unless  some  other  process  is  provided  by  law.*  And 
when  mandamus  is  asked  to  compel  the  issuing  of  a  com- 
mission to  a  person  duly  elected  to  an  office,  it  is  essential 
that  the  relator  should  show  a  clear  title  to  the  office 
claimed.' 

§  410.  Mandamus  will  lie  to  compel  the  making  of  an 
appointment  to  fill  an  office  if  the  person  who  is  properly 
vested  with  the  power  of  appointment  fails  or  refuses  to  act.' 
But  the  writ  will  not  be  granted  to  compel  the  making  of  an 
appointment  to  an  office  where  it  is  apparent  that  the  ap- 
pointing power  is  about  to  proceed  in  the  matter,  and  where 
it  is  not  shown  that  there  is  an  attempt  to  evade  the  law  by 
unnecessary  delay.' 

1  [Mandamus  will  lie  to  compel  a  returning  officer  to  make  his  state- 
ment complete  and  accurate.    Steward  v.  Peyton,  77  Ga.,  668.] 
^  Ex  parte  Heath,  3  Hill,  43. 
'  High  on  Extr.  Rem.,  §  52,  and  cases  cited. 
<  Commonwealth  v.  County  Commissioners,  5  Rawle,  ?& 
«  State  V.  Albin,  44  Mo.,  346. 

6  [State  V.  Houston,  40  La.  Ann.,  393;  S.  C,  4  Sa  Rep.,  50.] 
'  People  V.  Regents,  4  Mich.,  98. 


302  ELECTIONS.  [chap.  XII. 

§  411.  The  rule  is,  that  mandamus  will  lie  to  compel 
election  officers  to  discharge  purely  ministerial  functions  as 
contradistinguished  from  such  duties  as  are  quasi  judicial  in 
their  character.^  The  duties  of  returning  officers  are  purely 
ministerial,  but  in  the  nature  of  the  case  they  must  exercise 
a  sort  of  judicial  function  in  determining  whether  the  papers 
received  by  them  and  purporting  to  be  returns  are  in  fact 
such,  and  are  genuine  and  intelligible  and  substantially  r  t 
required  by  law.^  But  after  these  questions  are  determined, 
the  duty  of  counting  the  votes  as  returned,  and  declaring  the 
result,  is  a  ministerial  duty  which  the  proper  officers  are 
bound  to  perform,  and  the  performance  of  which  may  be 
compelled  by  mandamus.'  And  it  is  not  doubted  that  even 
as  to  questions  concerning  which  returning  officers  exercise 
a  discretion,  they  can  be  compelled  by  mandamus  to  act  and 
to  decide,  though  their  discretion  cannot  be  controlled  by 
this  means,  and  they  cannot,  therefore,  be  directed  by  man- 
damus as  to  how  they  shall  decide.  If  they  decide  any 
such  questions  wrongfully  or  erroneously,  the  party  injured 
has  his  remedy  by  quo  warranto  or  by  such  other  form  of 
remedy  as  may  be  provided  by  statute. 

§  412.  Canvassing  officers  are  bound  to  certify  the  result 
of  an  election  as  shown  by  the  returns  made  to  them,*  and 

1  [State  V.  Houston,  40  La.  Ann.,  393;  S.  C,  4  So.  Rep.,  50.  As  to  man- 
damus against  officers  of  the  United  States,  see  note  to  case  of  United 
States  ex  rel.  v.  Bayard  (Dist.  of  Colo.),  17  Am.  &  Eng.  Corp.  Cases,  485- 
498.] 

2  [State  V.  Kavanagh,  24  Neb.,  506.] 

« [Houston  V.  Steele  (Ky.),  34  S.  W.  Rep.,  6 ;  Page  v.  Letcher,  11  Utah,  119 ; 

39  Pac.  Rep.,  499.  Where  a  statute  required  the  registrar  to  appoint  com- 
missioners ten  days  and  to  publish  them  six  days  before  the  election,  if 
he  has  refused  to  perform  this  duty,  parties  interested  are  not  precluded 
from  judicial  remedy  because  he  has  so  acted,  and  mandamus  will  lie 
after  the  time  named  to  compel  such  appointments.    State  v.  Houston, 

40  La.  Ann.,  393;  S.  C,  4  So.  Rep.,  50.  But  a  peremptory  mandamus 
will  not  be  allowed  requiring  the  judges  and  clerks  of  an  election  to 
count  ballots  rejected  by  them  after  such  ballots  have  been  returned  to 
the  county  clerk  and  are  beyond  their  control.  State  v.  Russell,  39 
Neb.,  116.] 

♦[Board  of  Education  of  Topeka  v.  Welch,  51  Elan.,  792.] 


CHAP.  XII.]  CONTESTED   ELECTIONS.  303 

if  such  returns  are  altered  by  either  fraud  or  mistake,  after 
being  sent  in,  the  canvassers  should  disregard  the  altera- 
tion and  base  their  certificates  upon  the  original  and  genu- 
ine returns.  The  vote  as  certified  must  be  canvassed.  No 
alteration  of  that  vote  known  by  the  canvassers  to  have 
been  made  after  the  returns  were  made  could  alter  their 
duty  to  certify  the  vote  so  returned,  and  the  performance 
of  this  duty  can  undoubtedly  be  compelled  by  mandamus.^ 
The  case  of  State  v.  Garesohe  ^  presented  the  question  whether 
mandamus  will  lie  in  such  a  case  if  it  appears  that  an  altera- 
tion has  been  made  in  returns,  but  the  canvassing  oflBcer 
does  not  know,  although  he  believes  it  to  have  been  fraudu- 
lently done  after  the  return  was  sent  in.  The  Court  de- 
cided this  point  in  the  affirmative,  holding  that  it  is  the  duty 
of  the  Court  in  such  a  case  to  take  proof  and  determine  for 
the  canvassing  board  which  is  the  vote  originally  certified. 
The  Court  said : 

"  A  peremptory  writ  of  mandamus  simply  to  count  the 
vote  certified  by  the  judges  and  clerks,  without  ascertaining 
which  was  the  vote  so  certified,  would  be  a  mere  hrutum 
fulmen^  as  it  could  never  be  determined  from  a  certificate  of 
obedience  whether  the  writ  had  in  fact  ever  been  obeyed." 
And  the  Court  held  that  it  was  proper  for  the  court  trying 
the  mandamus  case  to  determine  which  was  the  true  return 
and  compel  the  board  to  canvass  it.  This  ruling  is  not  in 
conflict  with  the  general  doctrine  that  mandamus  will  not 
lie  to  control  the  exercise  of  a  discretion.  The  discretion 
contemplated  by  that  doctrine  is  judicial  in  its  nature.  It 
cannot  be  said  that  the  canvassing  board  has  any  discretion 
to  certify  the  result  as  shown  by  a  fraudulent  alteration  of  the 
returns.  Its  duty  is  purely  ministerial  and  consists  in  cer- 
tifying the  vote  as  returned.  The  performance  of  this  min- 
isterial act  may  be  enforced  by  mandamus;  and  where  the 
court  is  advised  that  the  returns  as  originally  made  by  the 

1  [Belknap  r.  Board  of  Canvassers  of  Ionia  County,  94  Mich.,  516; 
Roemer  v.  Board  of  City  Canvassers  of  Detroit,  90  Mich.,  27.] 

2  65  Mo.,  480. 


304:  ELECTIONS.  [CHAP.  XII. 

judges  of  election  have  been  fraudulently  or  accidentally 
altered,  it  is  competent  for  the  court  to  compel  the  board  to 
disregard  the  alteration. 

§  413.  It  is  no  answer  to  an  alternative  writ  of  manda- 
mus commanding  a  board  of  canvassers  to  count  and  canvass 
the  returns  of  certain  precincts  to  show  that  the  returns  are 
irregular  and  imperfect,  without  showing  that  they  are  in 
such  a  state  as  to  render  it  impossible  to  ascertain  from  them 
the  vote  cast  and  for  whom  cast.  Thus,  it  has  been  held  in 
Florida  that  such  irregularities  as  the  following  will  not  ex- 
cuse the  board  from  making  the  canvass  and  certificate  re- 
quired by  law : 

1.  That  one  return  has  the  number  of  votes  for  one  can- 
didate written  twice,  and  the  other,  which  should  have  been 
a  duplicate,  did  not  contain  this  repetition. 

2.  That  the  jurat  to  the  oath  returned  by  the  inspectors 
was  not  signed. 

3.  That  the  two  returns  which  should  have  been  dupli- 
cates also  differed  in  this,  that  one  referred  to  a  certain  act 
of  date  August  6,  1868,  and  the  amendments  thereof,  as  the 
law  under  which  the  election  was  held,  while  the  other  gave 
the  dates  of  the  amendments. 

4.  From  certain  marks  on  the  ballots  the  canvassers  con- 
sidered them  unlawful.^ 

§  414.  It  rests  in  the  discretion  of  the  Court  to  grant  or 
refuse  a  writ  of  mandamus  to  compel  the  canvass  of  the 
votes  cast  at  an  election.'  As  a  general  rule  the  writ  will  be 
granted  upon  a  showing  that  the  board  refuses  to  canvass  the 
vote  according  to  the  face  of  the  returns.  The  cases  are 
indeed  rare  where  the  writ  will  be  refused  upon  such  a 
showing.  All  questions  affecting  the  hona  fides  of  the  re- 
turns, and  the  correctness  of  the  result  indicated  by  them, 

1  State  V.  Canvassers,  17  Fla.,  9.  But  it  ha8  been  held  that  a  canvassing 
Qflficer  cannot  be  compelled  to  canvass  returns  sent  to  him  unsealed  in 
disregard  of  a  statute  requiring  that  they  be  sealed  and  delivered  to 
him.    State  v.  Randall,  35  Ohio  St.,  64 

2  f  Shellabarger  v.  Commissioners  of  Jackson  County,  50  Kan.,  138.] 


CHAP.  XII.]  CONTESTED   ELECTIONS.  305 

will,  as  a  rule,  be  left  to  be  determined  upon  a  contest. 
IS'evertheless  a  case  may  arise  where  fraud  is  so  apparent 
that  a  court  may  refuse  to  compel  the  completion  of  the 
canvass.  Thus,  it  has  been  held  in  Kansas  that  where  the 
returns  showed  a  vote  cast  of  two  thousand  nine  hundred 
and  forty-seven,  upon  the  question  of  removing  a  county 
seat,  while  in  point  of  fact  there  were  only  about  eight  hun- 
dred legal  voters  in  the  county,  the  court  should  refuse  to 
even  apparently  sanction  so  great  a  fraud  by  issuing  a  man- 
damus to  compel,  in  the  name  of  a  technical  compliance  with 
duty,  the  canvass  of  such  returns.  The  writ  was  accord- 
ingly refused.^ 

§  415.  The  office  of  the  writ  of  mandamus  is  to  compel 
the  performance  of  a  duty  imposed  by  law  upon  an  inferior 
tribunal.^  "Whatever  the  duty  may  be,  its  performance  may 
be  required  by  this  form  of  procedure.  Hence,  it  has  been 
held  that  where  it  was  the  duty  of  a  board  of  county  can- 
vassers, under  the  circumstances  described  in  evidence,  to 
remit  an  erroneous  return  to  the  district  inspectors  for 
correction,  the  performance  of  this  duty  could  be  compelled 
by  mandamus.  Until  the  inspectors  have  made  a  true 
return,  their  duties  are  undischarged.'  But  after  the  in- 
ferior tribunal  has  completed  the  performance  of  its  duties, 
mandamus  will  not  lie  by  a  contestant  to  compel  the  count- 
ing of  votes  cast  for  him.  The  remedy  in  such  a  case  is  by 
a  contest.* 

§  416.  And  of  course  it  will  be  understood  from  what  has 
already  been  stated,  that  where,  as  is  sometimes  the  case, 
large  judicial  powers  are  conferred  by  law  upon  canvassing 
boards,  mandamus  will  not  lie  to  direct  or  control  them  in 
the  exercise  of  their  judicial  or  discretionary  functions.'    It 

1  The  State  v.  Stevens,  23  Kan.,  456. 

2  People  V.  Schiellein,  95  N.  Y.,  124. 

8  People  V.  Green  County  Canvassers,  12  Abb.  (N.  Y.)  New  Cases,  95; 
S.  C,  64  How.  (N.  Y.)  Pr.,  201. 
<  Myers  v.  Chalmers,  60  Miss.,  7721. 
5  [Arrison  v.  Cook,  6  D.  C,  335.] 
20 


306  ELECTIONS,  [chap.  XD. 

must  be  constantly  borne  in  mind  that  the  oflBce  of  this  writ 
is  to  compel  the  performance  of  acts  which  are  purely  minis- 
terial in  their  nature,  though  it  may,  as  we  have  said,  be 
employed  to  compel,  but  not  to  control,  the  exercise  of 
judicial  functions.  This  rule  being  kept  in  view,  no  serious 
difficulty  can  arise  upon  this  subject.^ 

§  417.  In  proceedings  by  mandamus  involving  collaterally 
the  rights  of  contesting  claimants  to  an  oifice,  the  court  will 
not  review  the  decision  of  a  board  of  canvassers,  for  the 
reason  that  such  decision  is  to  be  treated  as  conclusive, 
except  in  proceedings  by  quo  warranto.^  In  accordance 
with  this  doctrine  it  has  been  held  that  where  the  statute 
directs  the  board  of  county  commissioners  to  order  an  elec- 
tion for  county  officers,  provided  a  certain  number  of  quali- 
fied electors  petition  therefor,  and  it  is  made  the  duty  of 
said  board  to  ascertain  whether  the  requisite  number  of 
electors  have  joined  in  such  petition,  mandamus  does  not  lie 
to  control  them  in  the  exercise  of  that  duty.  And  if  they 
have  decided  the  matter  and  refused  to  order  the  election, 
mandamus  will  not  lie  to  compel  them  to  make  such  order.* 
And  it  is  also  clear  that  the  writ  of  mandamus  will  not  be 
ordered  to  compel  election  officers  to  perform  a  ministerial 
duty  before  the  time  for  its  performance  has  arrived.  The 
court  will  not  anticipate  a  refusal  of  an  officer  to  do  his  duty, 
even  though  he  may  have  threatened  or  predetermined  not 
to  perform  it.  There  can  be  no  omission,  neglect  or  refusal 
to  perform  a  duty  where  the  time  has  not  yet  arrived  for  its 
performance.* 

iQrier  v.  Shackleford,  2  Brev.  (Sd  ed.),  549;  Mayor,  etc.;  v.  Rainwater, 
47  Miss.,  547. 

2  People  V.  Stevens,  5  Hill,  616;  High  on  Extr.  Rem.,  §  57.  [Where  the 
board  of  supervisors  of  a  county  in  Michigan  has  ordered  an  election 
to  decide  upon  the  removal  of  a  county  seat,  and  canvassed  the  vote 
and  decided  the  result,  such  action  is  conclusive,  and  not  subject  to 
review  by  the  courts  of  the  State.  Hipp  v.  Charlevoix  County  Super- 
visors, 62  Mich.,  456.    See,  also,  Dauble  v.  McQueen,  96  Mich.,  39.J 

*  State  V.  Commissioners,  8  Nev.,  309. 

♦  State  V.  Carney,  3  Kan.,  88. 


<3HAP.  XII.]  CONTESTED    ELECTIONS.  307 

§  418.  We  have  seen  that  mandamus  does  not  lie  to  com- 
pel admission  to  an  office,  and  we  have  also  seen  that  it  does 
lie  to  compel  the  proper  authority  to  issue  a  commission  to 
the  person  declared  elected.  There  is  no  conflict  between 
these  two  rules.  The  granting  of  the  writ  to  compel  admis- 
sion to  the  office  would  have  the  effect  of  determining  the  title 
thereto,  but  this  is  not  the  effect  of  the  writ  when  granted 
to  compel  the  issuance  of  the  certificate  of  election.  This 
certificate,  when  issued  by  virtue  of  a  mandamus,  has  pre- 
cisely the  same  force  as  if  issued  without  such  writ.  In 
either  case  it  is  only  prima  facie  evidence  of  title  to  the 
office,^  and  may  be  attacked  and  overthrown  by  other  proof.' 

§  419.  In  People  v.  HilUard '  it  was  held  that  it  is  no 
objection  to  the  granting  of  the  writ  to  compel  the  issuance 
of  a  certificate  of  election,  that  the  respondent  has  already 
issued  certificates  to  other  parties.  The  court  said :  "  We 
do  not  propose  to  turn  the  others  out  of  office  on  an  applica- 
tion for  mandamus.  They  are  not  parties  to  this  adjudica- 
tion." On  the  contrary,  however,  it  was  held  in  Magee  v. 
Supervisors,^  that  if  the  canvassers  have  performed  their 
duty,  and  in  the  exercise  of  their  discretion  have  declared  the 
result  of  the  election  adversely  to  the  claimant,  he  cannot 
have  mandamus  to  compel  the  issuing  of  a  certificate  to  him, 
his  remedy  being  by  proceedings  in  quo  warranto.  And 
this  would  seem  the  better  rule,  since  the  issuing  of  a  second 
certificate  under  the  order  of  the  court,  as  we  have  seen,  does 
not  affect  in  any  way  the  question  of  title  to  the  office,  and 
it  is  desirable  that  the  claimant  should  be  put  to  his  remedy 
by  quo  warranto  at  once  and  in  the  first  instance,  to  the  end 
that  the  case  may  be  speedily  disposed  of  upon  the  merits. 

§  420.  It  has  also  been  held  that  mandamus  is  the  proper 
remedy  to  compel  a  registering  officer  to  register  as  voters 

1  [Bisbee  V.  Hull,  1  Ells.,  315.] 

2  High  on  Extr.  Rem.,  §  61;  State  v.  Gibbs,  13  Fla.,  55;  People  v.  Hill- 
iard,  29  111.,  413,  419;  In  re  Strong,  20  Pick,  484;  People  t?.  Elves,  27  III, 
241;  Brower  v.  O'Brien,  2  Ind.,  42a 

*  Supra. 
nOCaL,  876. 


308  ELECTIONS.  [OHAP.  XH, 

the  names  of  persons  properly  qualified.^  [But  a  petition 
for  the  writ  in  such  a  case  is  premature  where  the  officer  or 
board  has  not  yet  held  a  session  for  hearing  applications.^  ] 

§  421.  Where  an  election  is  held  and  no  question  is  made 
as  to  the  result,  the  inspectors  of  the  election  have  no  right 
to  consider  the  question  of  the  validity  of  such  election,  but 
must  certify  the  result,  and  upon  their  failure  or  refusal  to  do 
so,  mandamus  will  lie  to  compel  them  to  perform  this  duty. 
The  writ  of  mandamus,  however,  even  when  used  to  place  a 
person  in  possession  of  an  office,  does  not  determine  the  ques- 
tion of  the  right  to  the  office.  It  merely  places  him  in  pos- 
session of  the  office  to  enable  him  to  assert  his  right,  which 
in  some  cases  he  could  not  otherwise  do.'  A  few  cases  may 
be  found  in  which  the  writ  of  mandamus  has  issued  to  the 
proper  certifying  or  returning  officer,  commanding  him  to 
certify  the  election  of  a  particular  person  by  name,  but  this 
is  believed  to  be  an  improper,  or  at  least  an  improvident,  use 
of  the  writ.  It  should  be  issued,  if  at  all,  simply  to  compel 
a  return  or  certification  of  the  result,  as  shown  by  the  proper 
returns,  but  the  court  issuing  the  writ  should  not  assume  to 
determine,  and  in  advance,  who  by  such  returns  is  entitled 
to  the  office.  As  we  have  heretofore  observed,  the  proper 
use  of  the  writ  is  to  compel,  but  not  control,  action  by  the 
returning  officers.  If  the  person  actually  elected  is  not  re- 
turned and  certified  to  be  elected,  his  remedy  is  plain,  and 
it  is  desirable  that  all  questions  connected  with  counting  the 
votes  and  declaring  the  result  should  in  the  first  instance 
remain  with  the  officers  of  election. 

§  422.  In  Kisler  v.  Caineron^  supra,  it  seems  that  no  ques- 
tion was  made  as  to  the  fact  that  the  relator  had  received 
a  majority  of  the  votes  cast.  The  inspectors  declined  to  cer- 
tify, on  the  ground  that  in  their  opinion  the  election  was 
void,  for  some  reason  not  stated  in  the  report  of  the  case. 

1  Da  vies  v.  McKeely,  5  Nev.,  804 

2  [United  States  v.  Bowen,  6  D.  C,  196.] 

sBrower  u  O'Brien,  2  Ind.,  423;  Moses  on  Mandamus,  90;  Kisler  v. 
Cameron,  39  Ind.,  48a 


OHAP.  XII.]  CONTESTED   ELECTIONS.  309 

Mandamus  was  granted  on  the  ground  that  it  was  not  the 
province  of  the  inspectors  to  inquire  as  to  the  validity  of  the 
election,  that  question  being  for  another  tribunal,  but  simply 
to  cast  up  the  returns,  declare  the  result,  and  issue  their  cer- 
tificate as  provided  by  the  plain  terms  of  the  statute,  and 
this  they  were  required  to  do. 

§  423.  We  gather  from  all  the  authorities  the  following 
rules : 

1.  If  the  oflBcers  of  election  refuse  or  fail  to  act,  manda- 
mus will  lie  to  compel  them  to  discharge  their  duties  as  re- 
quired by  statute ;  but  in  such  cases  the  writ  will  not,  as  a 
general  rule,  command  such  officers  to  certify  that  any  par- 
ticular person  has  been  elected. 

2.  If  there  are  two  or  more  persons  claiming  the  office, 
the  writ  will  never  issue  to  require  such  officers  to  declare 
either  one  elected,  but  only  to  command  them  to  execute  the 
duties  and  exercise  the  functions  conferred  upon  them  by 
law. 

3.  If  it  clearly  appears  that  a  particular  person  has  re- 
ceived the  majority  of  the  votes  cast,  and  that  no  question  is 
made  upon  this  point,  perhaps  mandamus  may  issue  to  com- 
pel such  officers  to  certify  the  election  of  that  person  by 
name,  although  this  is  substantially  the  same  thing  as  to 
order  them  to  certify  the  result  according  to  law,  and  there- 
fore the  latter  form  will  always  be  found  to  be  the  best. 


CHAPTER  Xm. 

CONTESTED  ELECTIONS  —  PROCEDURE. 

§  424.  Practice  usually  governed  by  local  statutory  regulations  oar  roles 
of  legislative  bodies. 

425.  Information  in  quo  warranto. 

426.  Notice. 

427.  Must  be  served  within  time  prescribed. 

428.  Rule  for  computing  time. 

429.  Specification  in  notice  of  grounds  of  contest 

429.  Names  of  illegal  voters  need  not  be  stated- 

430.  Proof  of  service  of  notice. 

431.  Statutes  providing  for  contesting  elections  to  be  liberallj'  con- 

strued. 
482.    The  claimant  must  set  forth  a  meritorious  case. 

433.  Mode  of  verifying  grounds  of  contest 

434.  Requisites  of  petition  under  Ohio  statute. 

435.  435a.  Application  for  recount  of  ballots. 
4355.  Continuance,  when  granted. 

435c.  Evidence  admissible  upon  a  recount  in  Illinoia 

436.  Statutory  mode  must  be  followed. 
437-439.    Requisites  of  pleading. 

440.    Certainty  to  common  intent  only  required. 
441, 443.    Amendments  must  be  made  without  delay. 

444.  Pleadings  in  special  statutory  proceedings. 

445.  What  issues  may  be  tried. 

446.  447.    No  judgment  by  default  in  the  United  States  House  of  Rep 

resentatives. 
448-450.    Mode  of  proceeding  in  contested  election  cases  in  the  United 
States  House  of  Representatives. 

451.  Importance  of  rule  requiring  sitting  member  to  proceed  with 

diligence. 

452,  453.    Extension  of  time  for  taking  of  testimony. 
454    Parties  not  allowed  to  discontinue  or  compromise. 

455.  Interest  of  the  people  in  contested  election  cases. 

456.  Continuances  not  generally  allowed. 

456a.  Where  contestee  dies  pending  contest,  proceedings  binding  on 
his  successor. 

457.  State  law  followed  in  Congressional  contests. 

457a.  Result  of  a  criminal  prosecution  not  considered  as  binding  on 
the  House. 

458.  Costs. 


OHAP.  XIII.]  CONTESTED   ELECTIONS.  311 

§  424,  It  seems  proper,  in  the  ne^^t  place,  to  give  some 
attention  to  the  subject  of  practice  or  procedure,  including 
notice,  pleading  and  the  mode  of  procuring  testimony,  in 
contested  election  cases.  Matters  of  this  character  are  largely 
governed  by  local  statutory  regulations,^  and  in  legislative 
bodies  sometimes  by  the  rules  and  orders  of  the  body,  the 
details  of  which  need  not  be  given  here.  It  must  suflSce  to 
refer  to  the  more  important  of  the  rules  bearing  upon  these 
subjects  which  have  from  time  to  time  been  established, 
and  to  some  of  the  principles  by  which  we  are  to  be  gov- 
erned in  the  construction  and  administration  of  the  statutes 
applicable  thereto. 

§  425.  In  the  absence  of  a  statute  prescribing  the  mode 
of  contesting  an  election,  the  common-law  proceeding  by  an 
information  in  the  nature  of  a  quo  warranto  must  be  re- 
sorted to.  The  information,  according  to  the  modern  prac- 
tice, must  be  filed  on  behalf  of  the  State  by  the  public  pros- 
ecutor, usually  by  the  Attorney  General,  and  its  purpose  is 
to  inquire  into  and  correct  the  alleged  usurpation  of  a  pub- 
lic olfice  by  one  not  entitled  thereto.  While  the  proceeding 
retains  its  criminal  form,  it  is  now  universally  regarded  as 
in  substance  a  civil  proceeding.  The  proceeding  is  insti- 
tuted at  the  instance  of  a  private  citizen  or  citizens  desig- 
nated as  the  relator  or  relators,  and  its  purpose  is  the  de- 
termination of  purely  civil  rights.  The  proceeding  must  be 
instituted  in  a  court  of  general  common-law  jurisdiction,  and 
the  information  must  set  forth  the  facts  constituting  the 
Information  by  the  incumbent  of  the  office,  as  weU  as  those 
upon  which  the  relator's  claim  to  the  office  is  founded.  Ap- 
plication must  be  made  to  the  Court  for  leave  to  file  the 
information,  and,  although  leave  is  ordinarily  granted  as  a 
matter  of  course,  it  rests  in  the  sound  discretion  of  the  court 
to  which  the  application  is  made  to  either  grant  or  refuse  it.* 

1  [Requisites  of  petition  in  Alabama.  Taliafero  v.  Lee,  97  Ala.,  93. 
Requisites  of  notice  as  to  time  and  place  of  contest  in  Indiana.  Grim- 
bell  V.  Green,  134  Ind.,  628.] 

2  High  on  Extr.  Leg.  Rem.,  §  605,  note  2. 


312  ELECTIONS.  [chap.  XHI. 

§  426.  iN'otice  is  absolutel}'^  essential  to  the  validity  of  a 
proceeding  to  ou:;t  the  incumbent  of  an  oflBce,  and  proceed- 
ings instituted  and  carried  on  without  notice  to  the  incum- 
bent should  be  treated  as  absolutely  nuU  and  void.^  By 
notice  here  is  not  meant  any  particular  form  or  character  of 
notice,  but  simply  that  some  kind  of  notice  is  essential.^  It 
has  accordingly  been  held  by  the  Court  of  Common  Pleas 
of  Philadelphia,  that  where  a  member  of  a  municipal  legis- 
lative body  has  been  expelled  without  notice  or  hearing,  a 
mandamus  will  be  granted  to  compel  such  body  to  restore 
him  until  he  has  had  notice  and  a  hearing.'  It  was  also  held 
in  the  same  case,  that  where  the  council  has  determined, 
after  notice  and  hearing,  that  the  member  has  incurred  a 
disqualification  by  accepting  a  Federal  office,  the  Court  will 
not  interfere,  for  the  reason  that  the  council  has  power  and 
jurisdiction  to  judge  of  the  qualifications  of  its  members. 

§  427.  A  statutory  provision  requiring  notice  of  contest 
to  be  given  within  a  given  time  from  the  date  of  the  official 
count,  or  from  the  declaration  of  the  result,  or  the  issuing 
of  the  certificate  of  election  or  the  like,  is  peremptory,  and 
the  time  cannot  be  enlarged.*  "  It  has  always  been  held," 
says  the  Court  in  that  case,  "  that  where  the  jurisdiction  of 
a  Court  is  made  to  depend  upon  the  time  either  of  giving 
notice  or  of  taking  appeals,  the  requirement  is  peremptory." 
And  see,  also,  Costello  v.  St.  Louis  Circuit  Court!'  And  it 
may  be  added  that  there  is  the  strongest  reason  for  enforc- 
ing this  rule  most  rigidly  in  cases  of  contested  election,  be- 
cause promptness  in  commencing  and  prosecuting  the  pro- 
ceedings is  of  the  utmost  importance,  to  the  end  that  a 

1  [Though  a  notice  of  contest  of  an  election  is  so  indefinite  that  an 
objection  would  lie  if  made  in  proper  time,  it  is  sufficient  if  the  par- 
ties take  issue  without  objection  and  try  the  case.  Lunsford  «.  Culton 
(Ct  of  Appeals,  Ky.),  23  Pac.  Rep.,  946.] 

2  [Whitney  v.  Blackburn,  17  Oreg.,  564.] 
«  Duffield's  Case,  Bright  Elec.  Cas.,  646. 

♦Bo wen  v.  Hixon,  45  Mo.,  340;  [Seeley  v.  Killoran,  53  Minn.,  240]. 
»28Mo.,  259,  27a 


CHAP.  XIII.]  CONTESTED   ELECTIONS.  818 

decision  may  be  reached  before  the  term  has  wholly  or  in 
great  part  expired.^ 

§  428.  Where  notice  of  contest  is  to  be  given  within  a 
given  number  of  days  after  the  determination  of  the  result, 
the  true  rule  for  computing  the  time  is  to  include  the  first 
and  exclude  the  last  day,  or  vice  versa.  Hence  it  was  held 
in  Kentucky  that  where  the  certificate  of  election  was  issued 
on  the  sixth  day  of  the  month,  and  notice  of  contest  was 
served  on  the  sixteenth  day  of  the  same  month,  there  was 
not  ten  days'  notice  as  required  by  law.^ 

§  429.  The  act  of  Congress  approved  February  19,  1851 
[Eev.  Stat.,  sec.  105],  "  to  prescribe  the  mode  of  obtaining 
evidence  in  cases  of  contested  elections,"  provides  among 
other  things  that  the  contestant  shall,  "  within  thirty  days 
after  said  election,  give  notice  in  writing  to  the  member 
whose  seat  he  intends  to  contest,  and  in  such  notice  shall 
specify  particularly  the  grounds  on  which  he  relies  in  said 
contest."  A  good  deal  of  discussion  has  arisen  as  to  what 
is  to  be  understood  by  the  words  "  specify  particularly  the 
grounds  on  which  he  relies."  It  is  evident,  however,  that 
these  words  are  not  easily  defined  by  any  others.*  They 
are  as  plain  and  clear  as  any  terms  which  we  might  employ 
to  explain  them.  Cases  have  arisen,  and  will  again  arise, 
giving  rise  to  controversy  as  to  whether  a  given  allegation 
comes  up  to  the  requirement  of  this  statute,  and  it  must  be 
for  the  House  in  each  case  to  decide  upon  the  case  before 
it.*  It  may  be  observed,  however,  that  this  statute  should 
receive  a  reasonable  construction  —  one  that  will  carry  out 
and  not  defeat  its  spirit  and  purpose.  And  perhaps  the  rule 
of  construction  which  will  prove  safest  as  a  guide  in  each 
case  is  this :  A  notice  which  is  suflEiciently  specific  to  put 
the  sitting  member  upon  a  proper  defense  and  prevent  any 

1  [Higbee  v.  Ellison,  92  Mo.,  13.] 

2  Batman  v.  Magowan,  1  Mete.  (Ky.),  533. 
» [Thobe  v.  Carlisle,  Mob.,  533.] 

♦  [Duffy  V.  Mason,  1  Ells.,  361;  Baynton  v.  Loring,  1  Ells.,  846.] 


314  ELECTIONS.  [chap.  XIH. 

surprise  being  practiced  upon  him  is  good,  but  one  which 
fails  to  do  this  is  bad.^ 

It  seems  to  be  settled  by  the  decisions  of  the  House  of 
Representatives  that  a  notice  is  good  under  the  law  if  it 
specify  the  number  of  illegal  votes  polled,  for  whom  polled, 
and  when  and  where  polled,  without  specifying  the  names 
of  the  illegal  voters.^  The  same  rule  prevails  in  cases  brought 
under  statutes  providing  for  the  contest  of  elections.' 

§  430.  In  Follett  v.  Delano*  the  committee  of  elections 
of  the  House  of  Representatives  expressed  the  opinion  that, 
inasmuch  as  there  is  no  statute  defining  the  mode  of  proving 
the  service  of  notice  in  a  contested  election  case  in  that  body, 
such  service  must  be  proven  as  any  other  fact  in  the  case,  by 
the  deposition  of  a  witness,  and  that  an  affidavit  is  not  suf- 
ficient. And  the  committee  in  the  same  case  also  expressed 
the  opinion  that,  inasmuch  as  the  statute  requires  the  con- 
testant to  "  give  notice  in  writing  to  the  member  whose  seat 
he  designs  to  contest,"  and  does  not  define  the  mode  of 
service,  it  must  be  a  personal  service,  and  that  service  by 
leaving  a  copy  at  the  residence  of  the  sitting  member  is  not 
sufficient.  These  points  can  hardly  be  considered  as  settled 
by  any  decision  of  the  House,  since  the  case  itself  was  con- 
sidered upon  its  merits,  notwithstanding  the  defective  serv- 
ice, and  it  is  the  opinion  of  the  author  that  it  would  not  be 
safe  to  risk  a  case  upon  this  construction  of  the  statute, 
which,  though  perhaps  technically  correct,  may  at  any  time 
be  disregarded  by  a  majority  of  the  House, —  as  it  is  quite 

1  Wright  V.  Fuller,  1  Bart.,  152.  [This  rule  obtains  in  contested  elec- 
tions in  Minnesota.  Soper  v.  Board  of  County  Commissioners,  46  Minn., 
274  A  contestee  may  waive  the  insufficiency  of  the  contestant's  no- 
tice of  contest.  Duffy  v.  Mason,  1  Ells.,  361;  Otero  v.  Gallegos,  1  Bart., 
•177;  Bramberg  v.  Haroldson,  Smith,  356.] 

*  Wright  V.  Fuller,  supra;  Vallandigham  v.  Campbell,  1  Bart.,  223; 
Otero  V.  Gallegos,  1  Bart,  177;  Case  of  Joseph  B.  Varnum,  CL  &  H.,  112. 

'Gibbons  v.  Sheppard,  65  Pa.  St.,  36;  Batturs  v.  Megary,  1  Brewst,  16i, 
Doerflinger  v.  Hilmantel,  21  Wis.,  566;  [Berry  v.  Hull  (N.  M.),  30  Pac 
Rep.,  936;  Batterton  v.  Fuller  (S.  Dak.),  60  N.  W.  Rep.,  1071]. 

<  2  Bart,  113. 


CHAP.  XIII.]  CONTESTED   ELECTIONS.  ^X5r 

likely  to  be  in  a  case  where  the  majority  should  consider  it 
a  construction  too  narrow  and  strict  to  meet  the  ends  of 
substantial  justice.  An  answer  will  of  course  operate  to 
waive  any  defect  in  the  service  of  the  notice,  though  perhaps 
not  in  the  notice  itself. 

§  431.  It  may  be  stated  as  a  general  rule,  recognized  by 
all  the  courts  of  this  country,  that  statutes  providing  for 
contesting  elections  are  to  be  liberally  construed,  to  the  end 
that  the  will  of  the  people  in  the  choice  of  public  oflBcers  may 
not  be  defeated  by  any  merely  formal  or  technical  objections.* 
Immaterial  defects  in  pleadings  should  be  disregarded ;  neces- 
sary and  proper  amendments  should  be  allowed  as  promptly 
as  possible ;  and  the  court  should  require  the  parties  to  speed 
the  cause,  so  that  the  official  term  which  is  in  dispute  may 
not  expire  either  in  whole  or  in  large  part  before  the  final 
decision  is  reached. 

§  432.  The  title  of  one  who  has  qualified  and  entered 
upon  the  duties  of  an  office  depends  upon  the  fact  of  his 
election,  and  not  upon  the  acts  and  omissions  of  boards  of 
canvassers  or  other  officials  charged  with  duties  in  connec- 
tion with  the  conduct  of  the  election  and  the  ascertainment 
and  declaration  of  the  result.  If  a  contest  is  instituted  under 
special  statute,  or  a  quo  w^arranto  proceeding  commenced  to 
try  title  to  an  office,  it  must  be  heard  upon  an  allegation 
which  goes  to  the  merits,  and  shows  that  the  incumbent  was 
not  in  fact  elected  by  the  electors.^ 

§  433.  Where  a  statute  provided  that  the  grounds  of 
contest  "  must  be  verified  by  the  affidavit  of  the  contestiug 
party  that  the  matters  and  things  therein  contained  are 
true,"  it  is  sufficient  if  the  ordinary  form  of  verification  is 
followed,  viz. :  that  the  statement  is  true  except  as  to  mat- 
ters therein  set  forth  on  information  and  belief,  and  as  to 
those  matters  affiant  believes  it  to  be  true,^    This  has  been 

1  Hadley  v.  Guthridge,  58  Ind.,  302;  [Grimm  v.  Hubbard,  97  Mo.,  311]. 
^Ex  parte  Smith,  8  S.  C,  495;  Ex  parte  Norris,  Id.,  408;  Govan  v. 
Jackson,  33  Ark.,  553. 

3  [Kreitz  v.  Behrensmeyer,  125  111.,  141.] 


316  BLECTIONS.  [chap.  XIH. 

held  to  be  a  substantial  compliance  with  such  a  statute,  and 
it  has  been  well  said  that  to  require  the  contestant  to  make 
oath  to  the  absolute  verity  of  every  averment  of  the  state- 
ment or  petition  of  his  own  knowledge  would  prevent  the 
contest  of  an  election  in  almost  any  conceivable  case,  and 
would  work  a  practical  abrogation  of  a  beneficial  law.  In 
the  nature  of  the  case,  many  of  the  facts  to  be  averred  must 
necessarily  be  derived  from  others,  and  therefore  must  be 
stated  upon  information  and  belief  only.^ 

§  434.  "Where  the  statute  provides  that  the  election  of  a 
public  officer  may  be  contested  by  "  any  candidate  or  elector," 
the  person  instituting  such  contest  must  aver  that  he  is  an 
elector,  or  that  he  was  a  candidate  for  the  office  in  question. 
This  must  appear  on  the  face  of  the  record,  and  it  is  not 
enough  that  the  contestant  offers  proof  that  he  is  an  elector. 
The  incumbent  is  not  bound  to  answer  or  take  notice  of  a 
complaint  which  does  not  contain  this  averment.^ 

§  435.  An  application  for  a  recount  of  the  ballots  cast  at 
an  election  will  not  be  granted,  unless  some  specific  mistake 
or  fraud  be  pointed  out  in  the  particular  box  to  be  examined. 
Such  recount  will  not  be  ordered  upon  a  general  allegation 
of  errors  in  the  count  of  all,  and  giving  particulars  as  to  none 
of  the  boxes.'  These  rulings  were  made  in  cases  of  applica- 
tions to  the  court  to  order  a  recount  of  ballots.  Of  course, 
such  an  order  might  be  accompanied  with  proper  provisions 
for  securing  fairness  and  accuracy,  and  the  result  might  and 
would  be  rejected  in  case  of  doubt  as  to  the  identity  of  the 
ballots ;  but  before  ordering  it  the  Court  held  that  there  must 
be  charges  of  mistake  or  fraud  sufficiently  precise  to  induce 
the  Court  to  entertain  the  complaint,  and  that  a  general 
allegation  of  errors  believed  to  exist  was  not  enough  to  au- 

1  Kirk  V.  Rhoads,  46  CaL,  398. 

2  Edwards  v.  Knight,  8  Ohio,  375;  [Gillespie  r.  Dion  (Mont),  44  Pac. 
Rep.,  954]. 

»Kneass'  Case,  2  Pars.,  599;  Thompson  v.  Ewing,  1  Brewst,  67,  97; 
Peau  V.  Field,  Ella,  190]. 


CHAP.  XIII.]  CONTESTED   ELECTIONS.  317 

thorize  the  perilous  experiment  of  testing  the  election  return 
by  the  result  of  a  recount. 

In  Nebraska  the  canvassing  officers  have  no  authority  to 
go  behind  the  poll  books  and  returns  and  inspect  the  ballots.^ 

[§  4:S5a.  In  an  election  contest  an  application  for  a  recount 
of  ballots  must  conform  to  the  statutory  requirements  gov- 
erning such  applications,  and  a  mere  oral  request  is  not  suf- 
ficient.] ^ 

[§  435J.  It  has  been  held  in  California  that  where  a  re- 
count of  votes  made  some  time  after  the  election  disclosed 
a  very  material  change,  and  where  affidavits  Avere  filed  at- 
tacking the  result  of  the  recount  and  charging  fraud,  and 
offering  to  prove  by  the  testimony  of  voters  that  more  votes 
were  cast  for  a  certain  candidate  than  appeared  from  the 
recount,  it  was  the  duty  of  the  Court  to  grant  a  continuance 
for  a  short  time  to  allow  an  investigation.] ' 

[§  435c.  In  Illinois  it  is  held  as  follows:  Under  an  an- 
swer admitting  that  the  ballot-boxes  containing  the  ballots 
were  forwarded  to  the  county  clerk  and  opened  by  him, 
with  two  justices,  within  four  days  after  the  election,  the 
preliminary  showing  that  the  ballots  are  unchanged  is  suf- 
ficient to  support  a  decree  for  a  recount,  as  after  the  re- 
count the  contestee  may  show  that  the  ballots  have  been 
changed,  if  such  is  the  fact;  evidence  by  the  contestee  that 
a  ballot,  after  having  been  handed  to  the  election  officers, 
was  changed  by  having  a  name  pasted  over  that  of  con- 
testee, though  no  such  matter  is  charged  in  the  answer,  is 
admissible  upon  the  issue  raised  by  contestee's  denial  of  the 
petition  alleging  that  contestant  w  as  actually  elected  to  the 
office ;  and  evidence  that  a  ballot  was  voted  which  does  not 
appear  among  the  ballots  in  the  recount  is  admissible,  though 
not  pleaded  in  the  answer,  to  rebut  the  case  made  out  in 
chief  by  contestant.]  * 

1  Kane  v.  People,  4  Neb.,  509. 

2  [McCoy  V.  Boyle,  51  N.  J.  Law,  53;  S.  C,  16  Atl.  Rep.,  15.] 

3  [Lord  -;.  Dunster,  79  CaL,  477;  S.  C,  21  Pac.  Rep.,  865.] 
*  [Kreitz  v.  Behrensmeyer,  124  III,  141.] 


318  ELECTIONS.  [chap.  XHI. 

§  436.  When  the  statute  of  a  State  provides  a  mode  for 
contesting  an  election,  that  mode  must  be  followed.^  And 
in  Illinois,  the  statutory  proceeding  is  held  to  be,  to  all  in- 
tents and  purposes,  a  chancery  proceeding.^ 

§  437.  In  Slcerret^s  Case '  the  Court  of  Common  Pleas  of 
Philadelphia  had  occasion  to  discuss  the  requisites  of  a  pe- 
tition to  contest  an  election.  The  statute  of  Pennsylvania 
provided  as  follows:  "That  the  returns  of  the  elections 
under  this  act  shall  be  subject  to  the  inquiry,  determination 
and  judgment  of  the  Court  of  Common  Pleas  of  the  proper 
county,  upon  complaint  in  writing  of  thirty  or  more  of  the 
qualified  electors  of  the  proper  county,  of  the  undue  election 
or  return  of  such  officer,  two  of  whom  shall  take  and  sub- 
scribe an  oath  or  affirmation  that  the  facts  sets  forth  in  said 
complaint  are  true,"  etc.  And  it  was  held  that  the  complaint 
must  set  forth  the  facts  with  particularity  and  precision,  and 
they  must  be  such  as,  if  true,  to  render  it  the  duty  of  the 
Court  either  to  vacate  the  election,  or  declare  another  per- 
son than  the  one  returned  to  have  been  duly  elected.*  It  was 
further  held  that  unless  the  petition  be  thus  verified  and  set 
forth  facts  that,  if  true,  would  have  changed  the  result,  it  will 
be  quashed  on  motion.  And  it  has  also  been  held  bad  on 
demurrer.*  There  is  no  doubt  as  to  the  soundness  of  this 
ruling.     It  is  not  desirable  to  encourage  groundless  or  f  rivo- 

1  Dickey  v.  Reed,  78  ni,  261. 

«  Dale  V.  Irwin,  78  HI.,  170.  See,  also.  State  v.  Stewart,  36  Ohio  St., 
216. 

»  2  Pars.,  509. 

•[State  V.  Stinson,  98  N.  C,  591;  State  v.  Patterson,  98  N.  C,  593; 
Kreitz  v.  Behrensmeyer,  125  111.,  141;  Sone  v.  Williams,  130  Mo.,  530.] 

5  [Todd  V.  Stewart,  14  Cal.,  286.  The  Nevada  statutes  provide  that 
any  person  who  may  be  convicted  of  having  offered  a  bribe  to  secure 
his  election  or  appointment  to  office  shall  be  disqualified  to  hold.  An- 
other section  provides  for  the  contest  of  an  election  in  case  the  per- 
son elected  to  the  office  shall  not,  at  the  time  of  the  election,  be  eligible 
to  such  office.  Held,  that  a  complaint  to  contest  the  election  of  a  dis- 
trict attorney  which  alleged  that  the  contestee  offered,  before  election, 
to  make  a  bohd  conditioned  that  if  elected  he  would  return  to  the 


€HAP.  XIII.]  CONTESTED    ELECTIONS.  319 

lous  contests.  If  the  complainants  have  a  solid  basis  for 
their  complaint,  they  can  readily  specify  the  facts  upon  which 
they  rely,  and  if  they  have  not  such  solid  basis,  it  is  better 
that  they  be  not  permitted  to  proceed.  "  The  true  rule," 
says  King,  P.  J.,  in  Skerrefs  Case,  supra,  "  regulating  such 
proceedings  should  be  defined  so  as  to  advance,  on  the  one 
hand,  substantial  and  meritorious,  and  to  arrest,  on  the  other, 
futile  and  querulous  complaints.  It  is  not  sufficient  to  state 
generally  that  A.  received  a  majority  of  votes  while  the 
certificate  was  given  to  B.,  and  therefore  the  complainants 
charge  that  there  was  an  undue  election.  This  is  but  a 
conclusion,  and  it  is  not  for  the  pleader  to  state  conclusions, 
but  facts  from  which  the  court  may  draw  conclusions.  If 
fraud  is  alleged,  the  petition  must  state  the  manner  in  which 
the  fraud  was  effected,  and  the  number  of  votes  fraudulently 
received  or  fraudulently  rejected."  ^ 

§  438.  In  an  information  setting  forth  that  the  respondent 
has  usurped  an  office  which  is  claimed  by  other  persons,  their 
claims  should  be  set  forth,  and  the  judgment  may  order  the 
ouster  of  the  usurper  as  well  as  the  admission  of  the  rightful 
claimant.'^  Leave  of  Court  must  be  had  to  file  an  informa- 
tion of  this  character,  under  the  common  law,  though  the 
Attorney  General  of  England,  it  seems,  might  file  it  at  his 
will." 

§  439.  "Where  some  of  the  grounds  set  out  in  the  petition 
are  mere  irregularities,  which,  if  sustained  by  proof,  would 
not  vitiate  the  election,  they  will  be  stricken  out  on  motion, 
and  the  respondent  will  not  be  put  to  the  trouble  of  taking 
proof  to  rebut  them.* 

county  treasurer  each  month  a  portion  of  his  salary,  but  does  not 
allege  that  he  had  been  convicted  of  offering  such  bribe,  does  not  show- 
that  he  was  disqualified  to  hold  the  oflSce,  and  is  fatally  defective. 
Egan  V.  Jones,  21  Nev.,  433.] 

^Upon  this  general  subject  see  Carpenter's  Case,  2  Pars.,  537;  Lelar's 
Case,  2  Pars.,  548;  Kneass'  Case,  2  Pars.,  553. 

2  Gano  V.  The  State,  10  Ohio  St.,  237. 

» 4  Blackstone,  311. 

*  Kneass'  Case,  supra.    And  see  Batturs  v.  Megary,  1  Brewst,  163. 


320  ELECTIONS.  [chap.  xi:i. 

§  440.  It  was  held  by  the  Supreme  Court  of  Pennsylva- 
nia, in  Gibbons  v.  Sheppard^  that  certainty  to  a  common  in- 
tent is  all  that  is  required,  and  that  some  of  the  rulings 
above  referred  to  were  too  stringent ;  that  the  rule  must  not 
be  held  so  strictly  as  to  afford  protection  to  fraud,  by  which 
the  will  of  the  people  is  set  at  naught,  nor  so  loosely  as  to 
permit  the  powers  of  sworn  officers  chosen  by  the  people  to 
be  inquired  into  without  well-defined  cause. 

Undoubtedly  the  same  rule  should  be  applied  to  a  plead- 
ing of  this  character  that  is  applied  to  all  other  similar 
pleadings.  It  should  state  in  a  legal  and  logical  form  the 
facts  which  constitute  the  ground  of  the  complaint ;  nothing 
more  is  required;  nothing  less  will  suffice.^ 

§  441.  In  most  of  the  States  of  the  Union  there  are  stat- 
utes to  regulate  pleadings,  under  which  courts  are  author- 
ized to  allow  amendments  where  petitions  or  other  pleadings 
are  found  to  be  defective,  and  under  most  of  these  statutes  a 
petition  in  a  contested  election  case  may  be  amended.  In 
the  absence  of  any  statute  of  this  character,  the  court  trying 
a  case  of  contested  election  may,  under  its  general  common- 
law  power,  permit  such  a  petition  to  be  amended ;  and  an 
amendment  ought  to  be  allowed  whenever  the  court,  in  the 
exercise  of  a  sound  discretion,  shall  be  of  opinion  that  the 
ends  of  justice  will  be  thereby  promoted.* 

§  442.  There  is,  however,  a  very  strong  reason  for  re- 
quiring any  such  amendment  to  be  made  inst^nter,  and  for 
bringing  an  election  case  to  a  prompt  and  speedy  trial  and 
determination,  and  it  is  this :  The  subject-matter  of  the  con- 
troversy is  daily  growing  less,  and  of  less  importance  and 
value.  The  office  in  question  is  usually  for  a  short  term  of 
one  or  perhaps  several  years  only,  and  if  the  "law's  delays" 

12  Brewst.,  2;  S.  C,  65  Pa.  St.,  36. 

2  [Whitney  v.  Blackburn,  17  Oreg.,  564] 

>Kneass'  Case,  2  Pars.  (Phila.),  553;  S.  C,  Bright  Elec  Cas.,  837^ 
[Heyfron  v.  Mahony,  9  Mont.,  487;  Wilson  v.  Hines  (Ky.),  35  S.  W.  Rep.,. 
627;  Nash  v.  Craig  (Ma),  35  S.  W.  Rep.,  1001]. 


CHAP.  XIII.]  CONTESTED   ELECTIONS.  321 

are  to  be  allowed  in  these  as  in  other  cases,  the  term  would 
often  expire  before  a  decision  could  be  reached.  If,  there- 
fore, an  amendment  of  a  petition  would  necessarily  result  in 
a  continuance,  or  in  considerable  delay,  it  ought  not  to  be 
permitted,  because  it  is  better  that  he  whose  fault  it  is  that 
the  original  petition  is  insufficient  should  suffer,  than  that  an 
innocent  party  should  be  deprived  of  his  right  to  a  speedy 
trial.  In  such  a  case  the  furtherance  of  justice  requires  that 
leave  to  amend  should  be  refused.^ 

§  443.  As  we  have  already  seen,  there  are  strong  reasons 
for  requiring  the  parties  to  an  election  contest  to  use  great 
diligence  in  preparing  for  an  early  trial.  In  accordance  with 
this  rule  it  is  held  that  an  amended  pleading  setting  up  new 
facts  will  only  be  allowed  where  it  affirmatively  appears  that 
such  facts  are  new ;  that  they  were  first  discovered  after  the 
service  of  the  original  notice;  and  that  by  the  use  of  due 
diligence  they  could  not  have  been  discovered  before  such 
service.^  And  in  Louisiana  it  is  held  that  all  statutes  pro- 
viding for  the  speedy  determination  of  election  cases  are  to 
be  strictly  construed.' 

§  444.  The  special  actions  and  forms  of  proceeding  pro- 
vided for  by  the  statutes  of  most  of  the  States  to  try  the  right 
to  an  office  are  in  the  nature  of  a  quo  warranto  at  common 
law.  They  diJffer  in  the  formula  of  proceeding  from  pro- 
ceedings by  information,  or  by  writ  of  quo  warranto,  but 
they  are,  as  a  general  rule,  in  substance  the  same,  and 
governed  by  substantially  the  same  rules  which  regulated 
proceedings  under  the  prior  practice.  Such  was  the  ruling 
under  the  statute  of  'New  York,  which  is  not  unlike  the  stat- 
utes of  most  of  the  other  States.* 

§  445.     The  inquiry  in  a  court  for  the  trial  of  a  contested 

1  See,  also,  Gibbons  v.  Sheppard,  65  Pa.  St.,  20,  35;  Mann  v.  Cassiday, 
1  Brewst,  32;  Thompson  v.  Ewing,  Id.,  68,  97,  101. 

2  Harrison  v.  Lewis,  6  "W.  Va.,  713. 

3  State  V.  Hall,  26  La.  Ann.,  58;  [Vailes  v.  Brown,  16  Cola,  462]. 
*  People  V.  Pease.  30  Barb.,  58a 

21 


ELECTIONS.  [chap.  XIII. 

election  under  the  Kansas  statute  is  not  necessarily  limited 
to  the  matters  presented  in  the  contestor's  statement.  The 
contestee  may  be  heard,  not  merely  in  denial,  but  in  proof  of 
other  matters  tending  to  show  his  right  to  the  office,  not- 
withstanding the  matters  alleged  in  the  statement ;  and  these 
other  matters  the  contestor  may  also  controvert  or  avoid.^ 

§  44:6.  In  the  case  of  Follett  v.  Delano^  it  was  held 
that  the  rule  that  a  failure  to  answer  is  a  confession  of  the 
allegations  contained  in  the  complaint  will  not  be  applied  to 
a  contested  election  in  the  House  of  Representatives.  The 
reason  is,  that  the  inquiry  is  of  a  public  nature,  and  not  a 
case  involving  private  rights  alone.  Upon  this  point  the 
committee  in  the  report  say : 

"  The  contestant  claimed  that  the  sitting  member,  by  fail- 
ing to  answer,  must  be  taken  to  have  confessed  the  truth  of 
the  allegations  in  the  notice.  The  statute  requires  of  the 
sitting  member,  within  thirty  days  after  the  service,  to  an- 
swer such  notice,  admitting  or  denying  the  facts  alleged 
therein,  and  stating  specifically  any  other  grounds  upon 
which  he  rests  the  validity  of  his  election.  If  the  contest- 
ant and  the  sitting  member  were  the  only  parties  interested 
in  the  representation  of  this  district,  it  might  not  be  unfair 
to  hold  that  the  sitting  member,  upon  service  of  notice  upon 
him  according  to  law,  must  answer  as  the  law  requires,  or  by 
neglect  or  refusal  be  taken  as  confessing  the  truth  of  the 
allegations  made  in  conformity  to  law  against  his  right  to 
his  seat,  and  abide  the  judgment  of  the  House  upon  such 
confession.  But  the  contestant  and  the  sitting  member  are 
by  no  means  the  only  parties  interested  in  this  representa- 
tion. The  electors  of  the  district,  each  and  every  one  of 
them,  have  a  vital  interest  in  that  question,  and  no  one  of 
them  can  be  precluded,  by  any  laches  not  his  own,  from  in- 
sisting that  the  choice  of  the  majority  shall  be  regarded. 
No  confession  of  the  sitting  member,  however  it  might  bind 

1  Baker  v.  Long,  17  Kan.,  841. 

2  3  Bart,  lia 


CHAP.  XIII. J  CONTESTED   ELECTIONS.  323 

him  personally,  can  place  the  contestant  in  the  seat,  unless 
he  is  the  choice  of  the  majority,  nor  deprive  that  majority  of 
its  rightful  representation.  The  sitting  member  may  well 
be  deprived,  by  his  neglect  to  answer,  of  reliance  upon  '  any 
other  grounds  upon  which  he  rests  the  validity  of  his  elec- 
tion,' for  he  has  never  given  notice  of  any  such  grounds; 
but  the  committee  are  of  opinion  that  the  House  should  re- 
quire proof  that  the  sitting  member  has  not,  and  that  the 
contestant  has,  a  majority  of  the  legal  votes  before  unseating 
the  one  and  admitting  the  other,  however  the  sitting  mem- 
ber may  have  seen  fit  to  conduct  his  own  case  in  a  contest." 

§  447.  A  similar  ruling  was  made  in  the  recent  case  of 
Sheridan  v.  Pinohhach}  It  is  very  clear  that  the  usual 
judgment  by  default,  such  as  would  follow  a  failure  to  an- 
swer in  the  courts  of  the  country,  should  not  be  rendered  in 
a  case  of  contested  election  in  the  House  of  Eepresentatives. 
If  the  sitting  member  has  not  answered  he  may  well  be  re- 
garded as  estopped  from  taking  testimony  or  proceeding  with 
the  contest  until  he  shall  have,  with  the  leave  of  the  House, 
filed  his  answer;  but  the  House  will  not  take  the  allegations 
of  contestant  as  true  because  they  are  not  answered.  In  the 
case  of  Sheridan  v.  Pinchhach  the  committee  say  that  the 
case  of  the  contestant,  where  the  sitting  member  does  not 
answer,  is  no  stronger  than  if  no  one  were  contesting  his 
right,  and  the  committee  had  been  ordered  by  the  House  to 
inquire  whether  he  was  elected.  This  distinction  between 
contested  election  cases  and  other  suits  grows  out  of  the  fact 
that  in  the  former  the  people  have  an  interest  so  vital  and 
important  as  to  forbid  the  parties  to  the  record  to  conclude 
their  full  investigation  and  decision  by  any  compromise  or 
other  action  of  theirs. 

§  448.  The  practice  in  cases  of  contested  election  in  the 
House  of  Eepresentatives  of  the  United  States  is  not,  and 
perhaps  never  can  be,  very  definitely  settled,  for  the  reason 

1  [Smith,  196.] 


324  ELECTIONS.  [chap.  XIH. 

that  each  House  is  the  final  judge  of  all  questions  arising  in 
such  cases,  and  neither  House  is  absolutely  bound  either  by 
the  action  of  any  previous  House,  or  by  the  statute  itself.^ 
The  statute,  however,  as  we  have  seen,  is  regarded  as  a  rule 
of  decision,  and  as  such  is  generally  followed,  and  should 
never  be  departed  from  without  the  very  strongest  reasons.- 

In  addition  to  what  has  already  been  said  touching  the 
practice  in  these  cases,  the  following  suggestions  are  made 
concerning  the  mode  of  instituting  and  carrying  on  a  con- 
test under  the  statutes  regulating  contested  elections  in  the 
House  of  Representatives : 

1.  "Within  thirty  days  after  the  result  of  the  election  in 
a  district  has  been  determined  by  the  proper  authority,  the 
contestant  must  serve  the  returned  member  with  notice  of 
contest.  This  notice  must  be  in  writing,  and  must  specify 
particularly  the  grounds  upon  which  the  contestant  relies.' 
The  period  of  thirty  days  within  which  such  notice  of  contest 
may  be  given  begins  to  run  from  the  time  when  the  result 
of  the  election  "  shall  have  been  determined  "  by  the  proper 
board  or  officer.  The  statutes  of  the  several  States  provide 
for  canvassing  the  votes  cast  for  Eepresentative  in  Congress, 
and  for  declaring  the  result,  and  these  statutes  must  be  con- 
sulted in  each  case  to  determine  the  question  when,  how 
and  by  whom  the  result  is  to  be  determined  and  declared. 
It  is  no  doubt  true,  that,  for  the  purpose  of  fixing  the  time 
when  the  thirty  days  begin  to  run,  there  must  be  not  only 
a  decision,  but  a  promulgation  of  the  result ;  for  if  the  result 
was  kept  secret  after  it  was  privately  ascertained,  and  if  it 
was  in  fact  not  communicated  to  the  contestant,  he  could  not 
be  required  to  give  notice.  The  promulgation  need  not  be 
in  any  formal  way,  unless  a  formal  proclamation  or  other 
publication  is  required  by  statute.    It  is  only  necessary  that 

1  [Jones  V.  Shelley,  2  Ells.,  681.] 
«  [Posey  u  Parrett,  Row.,  187.] 
»  Revised  Statutes,  §  105. 


CHAP.  XIII.]  CONTESTED   ELECTIONS.  325 

it  be  made  known  in  some  manner.^  The  statute  is  silent 
as  to  the  manner  of  the  service  of  the  notice ;  it  declares  that 
the  contestant  shall  "  give  notice  in  writing,"  etc.  In  Fol- 
lett  V.  Delano^  the  committee  expressed  the  opinion  that 
the  correct  construction  of  the  statute  would  require  personal 
notice,  and  that  service  made  by  leaving  a  copy  at  the  resi- 
dence of  the  sitting  member  would  not  be  good.'  [In  a 
later  case,  however,  it  has  been  held  by  the  House  that  it  is 
sufficient  to  serve  the  notice  upon  the  wife  of  the  contestee 
at  his  place  of  residence,  if  the  contestee  is  absent  from  the 
State  or  Territory.*]  Undoubtedly  the  service  should  be 
made  personally  upon  the  returned  member,  if  this  is  prac- 
ticable ;  but  if  by  reason  of  his  absence,  or  his  avoidance  of 
service,  or  for  any  other  cause,  personal  service  cannot  be 
made,  then  undoubtedly  the  notice  may  be  served  in  the 
manner  provided  by  the  statute  of  the  State  for  serving  pro- 
cess. It  is  clear  that  the  House  should  hold  service  made 
under  these  circumstances,  in  the  manner  pointed  out  by 
the  local  law  for  serving  process,  to  be  sufficient,  because 
otherwise  the  incumbent  might,  by  avoiding  personal  service, 
prevent  a  contest  altogether.  Another  question  is,  how  shall 
the  service  of  notice  of  contest  be  proved  ?  Here  again  the 
act  of  Congress  is  silent.  The  affidavit  of  the  person  making 
the  service  has  generally  been  taken,  but  in  Follett  v.  De- 
lano, supra,  the  sufficiency  of  this  mode  of  proof  was  denied. 
Where  the  returned  member  answers,  he  waives  any  infor- 
mality in  the  service  ^  or  proof  of  service ;  but  where  he  does 
not,  the  safe  practice  is  for  the  contestant  to  call  as  a  witness 
the  person  who  has  made  the  service,  and  prove  the  fact  of 
service  as  he  would  prove  any  other  fact  in  the  case. 

2.    The  returned  member  must,  within  thirty  days  from 

1  Gunter  v.  Wilshire  [Smith,  333]. 

2  3  Bart.,  113,115. 

3  §430. 

*  [Manzanares  v.  Luna,  Mob.,  61.] 
5  [See  note  to  §  429.] 


326  ELECTIONS.  [chap.  XIII. 

the  time  when  he  is  served  with  the  notice  of  contest,  an- 
swer the  same.  The  answer  must  be  served  upon  the  con- 
testant. This  may  be  done  by  leaving  a  copy  with  him,  or, 
if  he  be  absent,  by  serving  it  in  the  same  manner  as  required 
for  serving  the  notice  of  contest.  The  answer  may  deny  or 
admit  the  allegations  of  the  notice,  and  may  state  specific- 
ally any  other  grounds  upon  which  the  returned  member 
rests  the  validity  of  his  election.^  The  statute  makes  no 
provision  for  further  pleading,  but  the  contestant  may  of 
course,  if  he  chooses  to  do  so,  serve  the  returned  member 
with  a  reply  to  any  new  matter  in  the  answer.  This,  how- 
ever, is  not  necessary.  Inasmuch  as  the  notice  and  answer 
are  the  only  pleading  recognized  by  the  statute,  no  further 
pleading  can  be  required,  and  the  new  matter  contained  in 
the  answer  must  be  proven,  to  avail  anything,  whether  it  is 
formally  denied  or  not. 

3.  The  statute  allows  ninety  days  in  which  to  take  testi- 
mony in  a  contested  election  case,  and  requires  that  it  be 
divided  between  the  parties  as  follows :  The  contestant  shall 
take  testimon}'-  during  the  first  forty  days,  the  returned  mem- 
ber during  the  succeeding  forty  days,  and  the  contestant  may 
take  testimony  in  rebuttal  only,  during  the  last  ten  days.'- 
The  period  of  ninety  days  within  which  testimony  may  be 
taken  begins  with  the  date  of  the  service  of  the  answer  of 
the  returned  member  upon  the  contestant.' 

4.  The  statute  provides  for  taking  testimony  in  contested 
election  cases,  either  within  or  without  the  Congressional  dis- 
trict. In  either  case  the  notice  provided  for  by  Section  108 
of  the  Revised  Statutes  must  be  given.  By  Section  109  it  is 
provided  that  testimony  may  be  taken  at  two  or  more  places 
at  the  same  time.  The  evident  purpose  of  the  statute  is  to 
enable  the  parties  to  complete  the  taking  of  testimony  within 
the  time  prescribed.     The  officers  before  whom  testimony 

1  Revised  Statutes,  §  106. 

2  Revised  Statutes,  §  107. 

3  See  Act  of  March  2, 1875;  [Bradley  v.  Siemens,  1  Ella,  296wl 


OHAP.  XIII.J  CONTESTED   ELECTIONS.  327 

may  be  taken  are  those  named  in  Section  110  of  the  Revised 
Statutes,  and  the  same  oflficers  are  authorized  to  take  deposi- 
tions of  witnesses  residing  out  of  the  reach  of  a  subpoena.^ 
The  party  desiring  to  take  testimony  must  give  the  notice 
required  by  Section  108  to  his  adversary,  and  must  also 
apply'  to  the  officer  before  whom  the  testimony  is  to  be  taken 
to  issue  a  subpoena.  The  officer  thus  applied  to  is  required 
to  issue  his  subpoena  directed  to  all  such  witnesses  as  shall 
be  named  to  him,  requiring  their  attendance  before  him  at 
some  time  and  place  named  in  the  subpoena.  The  subpoena 
should  follow  the  notice  in  giving  names  of  witnesses,  and 
fixing  time  and  places.'^ 

5.  If  neither  of  the  officers  named  in  Section  110  are 
residing  in  the  district,  then  any  two  justices  of  the  peace 
may  take  testimony,^  Depositions  may  be  taken  by  consent, 
without  notice  and  before  any  officer  authorized  by  law  to 
take  depositions  in  common-law  or  civil  actions  or  in  chan- 
cery.* Every  subpoena  must  be  served  by  a  copy  thereof 
delivered  to  the  witness  or  left  at  his  usual  place  of  abode 
at  least  five  days  before  the  day  on  which  his  attendance  is 
required,  and  every  witness  must  be  examined  Avithin  the 
county  in  which  he  resides  or  may  be  served.' 

Witnesses  failing  to  attend  and  testify  in  obedience  to  a 
subpoena  duly  served,  unless  prevented  by  sickness  or  un- 
avoidable necessity,  are  liable  in  damages  and  also  to  indict- 
ment and  punishment  for  a  misdemeanor.^ 

6.  The  statute  further  provides  for  taking  the  depositions 
of  witnesses  residing  outside  of  the  district  and  beyond  the 
reach  of  a  subpoena.     Depositions  outside  of  the  district  may 

1 R.  S.,  §  117.  [A  United  States  Commissioner  cannot  take  testimony 
except  by  written  consent  of  the  parties.  Stolbrand  v.  Aikiu,  3  Ells., 
603.] 

2R.S.,  §§108,  109,110,111. 

3RS.,  §112. 

4R  s.,  §iia 

5R.S.,  §§114, 115. 
6R.a,  §116. 


328  BLEOTIONS.  [chap.  XIII. 

be  taken  before  any  oflBcer  authorized  to  take  testimony  in 
contested  election  cases.^ 

7.  The  notice  to  take  depositions  of  witnesses  residing 
outside  of  the  district  and  beyond  the  reach  of  a  subpoena  is 
the  same  notice  required  to  be  given  for  taking  the  testimony 
of  witnesses  found  within  the  district,  and  the  substance  of 
the  notice  and  the  manner  and  time  of  its  service  are  speci- 
fied in  Section  108. 

8.  When  a  party  to  a  contest  receives  the  notice  provided 
by  law  of  the  intention  of  his  adversary  to  take  depositions 
either  within  or  without  the  district,  he  is  at  liberty  to  name 
an  officer  (having  authority  to  take  depositions  in  such  cases) 
to  officiate  with  the  officer  named  in  the  notice,  and,  if  both 
officers  attend,  the  depositions  shall  be  taken  before  them 
both  sitting  together  and  be  certified  by  both.  But  if  only 
one  of  such  officers  attends,  the  depositions  may  be  taken  be- 
fore and  certified  by  him  alone.  At  the  taking  of  testimony 
by  deposition  or  otherwise,  either  party  may  appear  in  per- 
son or  by  attorney.^ 

9.  As  to  the  manner  of  the  examination  of  witnesses  the 
statute  is  not  very  clear.'  The  language  is,  that  "  all  wit- 
nesses who  attend,"  etc.,  "  shall  be  examined  hy  the  officer^^ 
etc.  This  should  no  doubt  be  construed  simply  as  requiring 
the  examination  to  be  conducted  he/ore  the  officer,  and  not 
as  requiring  him  to  propound  the  questions  to  witnesses.  It 
will  be  seen  that  this  section  requires  witnesses  to  be  ex- 
amined "  touching  all  such  matters  respecting  the  election 
about  to  be  contested  as  shall  be  proposed  hy  either  of  the 
parties  or  their  agents.  And  Section  122  provides  that  the 
officer  "  shall  cause  the  testimony  of  the  witnesses,  together 
with  the  qvsstions  proposed  hy  the  parties  or  their  agents,  to 
be  reduced  to  writing,"  etc.  From  all  which  it  seems  clear 
that  witnesses  are  to  be  examined  before  the  proper  officer, 

1 R.  S.,  S  117. 
»R.S.,§§118, 119. 
sSeeRS.,  §12a 


CHAP.  XIII.]  CONTESTED   ELECTIONS.  329 

and  under  his  direction,  and  that  the  parties  or  their  attor- 
neys may  appear  and  propound  any  proper  questions.  In 
the  absence  of  the  officer  named  in  the  notice,  and  who  issued 
the  subpoena,  depositions  may  be  taken  before  any  other 
oflficer  who  is  authorized  to  issue  such  subpoena,  or  by  any 
officer  who  may  be  agreed  upon  by  the  parties.  And  this 
rule  applies  as  well  to  testimony  taken  within  the  district  as 
to  that  taken  without  the  district,  i 

10.  The  testimony  is  to  be  confined  to  the  issues  joined 
between  the  parties,  and  the  ordinary  rules  of  evidence  should 
be  applied  in  determining  questions  of  competency  and  rele- 
vancy.* Testimony  must  be  written  down,  together  with 
the  questions  propounded,  in  the  presence  of  the  officer,  and 
in  the  presence  of  the  parties  or  their  agents,  if  attending, 
and  must  be  attested  by  the  witnesses.*  Section  123  pro- 
vides for  the  production  of  papers  to  be  used  as  evidence  in 
contested  election  cases.  The  taking  of  testimony  may,  if  so 
stated  in  the  notice,  be  adjourned  from  day  to  day.* 

11.  The  notice  to  take  depositions  with  the  proof  or  ac- 
knowledgment of  service  thereof,  and  a  copy  of  the  subpoena 
when  one  has  been  served,  are  to  be  attached  to  the  deposi- 
tions when  completed,  and  a  copy  of  the  notice  of  contest, 
and  the  answer  thereto,  are  to  be  prefixed  to  the  same,  and 
transmitted  with  them  to  the  clerk  of  the  House  of  Kepre- 
sentatives.* 

12.  It  is  the  duty  of  the  officer  who  takes  testimony  to 
be  used  in  a  contested  election  case,  without  unnecessary 
delay  to  certify,  carefully  seal  up,  and  forward  the  same  to 
the  clerk  of  the  House  of  Representatives.  This  is  to  be 
done  "  when  the  taking  of  the  same  is  completed."^  If  the 
testimony  of  a  number  of  witnesses  is  taken  before  the  same 

1 R.  S.  §  120. 
»  R.  S.  §  131. 
»  R.  S.  §  123. 
*  R.  S.  §  124. 

^  R.  s.  §§  125,  laeL 

«  R.  S.  §  127. 


330  ELECTIONS.  [chap.  xhi. 

officer,  he  may  delay  the  sending  forward  of  the  testimony 
until  all  have  been  examined — but  must  not  delay  its  trans- 
mission any  longer  than  is  necessary  for  this  purpose,  and  he 
must  be  careful  to  keep  the  testimony  in  his  own  possession, 
and  securely,  until  it  is  mailed,  as  prescribed  by  the  statute. 
Testimony  of  witnesses  taken  to  be  used  in  a  contested  elec- 
tion case,  must  be  certified  by  the  officer  taking  it,  but 
neither  the  form  nor  the  substance  of  the  certificate  is 
prescribed  by  the  statute.  Doubtless  the  form  prescribed  by 
the  law  of  the  State  in  which  the  testimony  is  taken,  for 
authenticating  depositions,  taken  under  the  laws  of  that 
State,  should  be  regarded  as  sufficient.  In  cases  where  no 
form  is  prescribed  by  the  local  law,  it  will  be  sufficient  if  the 
officer's  certificate  shows  that  the  witness  came  before  the 
officer  at  the  time  and  place  named  in  the  notice — that  he 
was  duly  sworn  and  examined,  that  the  questions  propounded 
to  him,  and  his  answers  thereto,  were  written  down  in  his 
presence,  and  in  the  presence  of  the  parties  or  their  counsel, 
(if  they  attended,)  and  that  after  being  thus  written  out  the 
testimony  of  each  witness  was  duly  attested  by  him  as 
by  law  required.  The  certificate  should  be  signed  by  the 
officer,  and  attested  by  his  seal  of  office,  if  he  have  a  seal. 

13.  The  clerk  of  the  House  of  Representatives  upon  the 
receipt  of  the  testimony  in  a  contested  election  case,  shall, 
after  giving  notice  to  the  parties,  open  the  sealed  packages 
in  the  presence  of  the  parties  or  their  attorneys  if  they 
attend.  The  parties  are  then  to  agree,  if  possible,  what 
portions  of  the  testimony  is  to  be  printed,  and  if  they  can 
not  agree  or  if  either  party  fails  to  attend,  the  clerk  shall 
determine  that  question,  and  cause  the  printing  to  be  done. 
The  clerk  must  preserve  the  portions  of  the  testimony  not 
printed.  As  soon  as  the  testimony  in  any  case  is  printed,  the 
clerk  shall  furnish  two  copies  thereof  to  each  of  the  parties. 
Brief  are  to  be  promptly  filed.* 

» Act  in  relation  to  contested  elections  approved  March  2, 1887.    Acts 


CHAP.  XIII.]  CONTESTED   ELECTIONS.  331 

§  449.  Although  the  acts  of  Congress  in  rela.Mon  to 
taking  evidence  in  contested  election  cases,  are  not  absolutely 
binding  upon  the  House  of  Representatives,  yet  they  are  to 
be  followed  as  a  rule  and  not  disregarded  or  departed  from, 
except  in  extraordinary  cases.  A  contestant  must  take  his 
testimony  under  the  statute,  and  in  accordance  with  its 
provisions,  unless  he  can  show  that  it  was  impracticable  to 
do  so,  and  that  injustice  may  be  done,  unless  the  House  will 
order  a  special  investigation.  ^  The  statute  as  it  now  stands 
after  the  recent  amendments,  affords  an  opportunity  for 
investigation,  so  ample  and  complete  that  it  is  believed  that 
it  will  seldom  happen  that  the  House  will  find  it  necessary 
to  depart  from  its  provisions  in  order  to  do  the  most  com- 
plete and  perfect  justice,  and  it  will  no  doubt  therefore  be 
adhered  to  as  furnishing  the  best  possible  guide,  for  institut- 
ing and  carrying  forward  inquiries  of  this  character.'^ 

§  450.  Testimony  to  be  used  in  a  case  of  contested  elec- 
tion in  the  House  of  Representatives  of  the  United  States 
must,  under  the  law  as  it  stood  prior  to  the  recent  amend- 
ments, be  taken  within  sixty  days  from  the  time  the  answer 
is  served,  unless  further  time  is  given  by  the  House. 
Therefore  a  deposition  taken  after  the  sixty  days  has  expired, 
and  without  the  order  of  the  House,  will  be  excluded.'  In 
the  case  last  named  it  was  held,  that  notwithstanding  the 
requirement  of  the  statute  that  notice  of  contest  shall  be 
served  "within  thirty  days  after  the  result  has  been  declared," 
yet  if  the  sitting  member  answers  to  a  notice  served  before 
the  result  is  declared,  he  should  be  held  as  waiving  this 
objection  and  can  not  avail  himself  of  it  on  the  final  hearing. 
The  true  construction  of  the  statute  allows  the  notice  to  be 
served  at  any  time  within  the  thirty  days,  but  not  after  the 
termination  of  that  period. 

2d  Sess.  49th  Cong.,  p.  445.    As  to  evidence  in  contested  election  cases 
generally,  see  Chapter  XIV,  Contested  Elections  —  Evidence. 

1  Brooks  V.  Davis,  1  Bart.,  244. 

2[Bisbee  u  Finley,  2  Ells.,  172.] 

*  Knox  V.  Blair,  1  Bart.,  521 ;  Todd  v.  Jayne,  1  Bart,  555w 


332  ELECTIONS.  [cnAP.  xin. 

§  451.  In  VaUandigham  v.  Campbell^  the  rule  that  a 
sitting  member  must  use  diligence  in  the  preparation  of  his 
defense  to  a  contest  brought  against  him,  was  adhered  to  by  the 
committee  and  the  House.  It  was  there  held  that  the  fact 
that  the  sitting  member  was  a  member  of  a  previous  Con- 
gress, and  attended  to  his  duties  as  such,  during  a  part  of  the 
time  when  by  law  the  testimony  should  have  been  taken, 
furnished  no  ground  for  an  extension  of  time  in  his  behalf. 
Also,  that  the  fact  that  the  contestant  occupied  or  proposed 
to  occupy  the  entire  sixty  days  after  service  of  the  answer  of 
the  sitting  member  to  the  notice  of  contest,  does  not  entitle 
the  sitting  member  to  an  extension  of  time.  Both  parties 
were  allowed  to  take  testimony  under  the  law  as  it  then 
stood  during  the  same  time.  And  substantially  the  same 
ruling  was  made  in  the  case  of  Boles  v.  Edwards.^  The 
statute  upon  this  subject  was,  however,  by  an  act  approved 
January  10,  1873,  amended  so  as  to  extend  the  whole  time 
for  taking  evidence  to  ninety  days,  and  so  as  to  divide  the 
time  as  follows:  the  first  forty  days  to  the  contestant,  the 
succeeding  forty  days  to  the  sitting  member,  and  the  closing 
ten  days,  to  the  contestant,  to  be  occupied  in  taking  testi- 
mony in  rebuttal  only. 

§  452.  The  House  of  Kepresentatiyes  of  the  United 
States  will  not  'grant  to  a  sitting  member  whose  seat  is 
contested,  an  extension  of  time  in  which  to  take  testimony, 
unless  it  appear  that  he  has  not  by  the  use  of  great  diligence, 
been  able  to  procure  his  testimony  within  the  time  allowed 
by  the  law. ^  The  reason  for  this  rule  is  thus  stated  in  the 
report  of  the  Committee  of  Elections,  in  the  case  of  Oiddmgs 
v.  darhj^iu  the  42d  Congress. 

"  It  must  be  borne  in  mind  that  the  party  now  asking  an 
extension  is  the  sitting  member.  He  is  now,  and  has  been 
during  a  large  part  of  the  term,  exercising  the  functions  and 
receiving  the  emoluments  of  the  office  in  (question.     In  a 

1 1  Bart.,  22a 

2  [Smith,  18.] 

»[Thobe  V.  Carlisle,  Mob.,  423;  Mason  v.  Gates,  2  Ells.,  &] 

*  [Smith,  91.] 


CHAP.  XIII.]  CONTESTED   ELECTIONS.  333 

litigation  of  this  character  the  thing  in  controversy  grows 
daily  less,  and  does  not,  as  in  most  ordinary  law  suits, 
remain  intact  to  be  recovered  by  the  successful  party  in  the 
end.  In  this  particular  case  the  extension  asked  for  would 
be  very  nearly  equivalent  to  a  final  decision  of  the  case  in 
favor  of  the  sitting  member  upon  the  merits.  We  are  now 
near  the  close  of  the  second  session  of  the  Congress.  If  the 
parties  are  to  be  sent  back  to  Texas  to  take  further  testimony, 
of  course  no  further  action  can  be  taken  until  the  opening  of 
the  third  and  last  session,  which  is  of  but  ninety  days'  dura- 
tion, and  would  be  necessarily  far  spent  before  a  final  decision 
could  be  reached.  It  does  not  follow  from  these  considera- 
tions that  a  sitting  member  can  in  no  case  be  allowed  an 
extension  after  the  time  allowed  by  law  for  taking  testimony 
expires;  but  your  committee  think  it  does  follow  that  no  such 
extension  should  ever  be  granted  to  a  sitting  member,  unless 
it  clearly  appears  that  by  the  exercise  of  great  diligence  he 
has  been  unable  to  procure  his  testimony,  and  that  he  is 
able,  if  an  extension  be  granted,  to  obtain  such  material 
evidence  as  will  establish  his  right  to  the  seat,  or  that  by 
reason  of  the  fault  or  misconduct  of  the  contestant  he  has 
been  unable  to  prepare  his  case." 

§453.  In  a  contested  election  case  in  Congress  an  appli- 
cation by  the  sitting  member  for  an  extension  of  time  to  take 
testimony,  made  after  the  time  allowed  by  law  for  taking  testi- 
mony has  expired,  and  after  the  term  of  office  contested  for 
has  well  nigh  expired,  it  is  necessary,  in  addition  to  showing 
great  diligence,  to  state  on  oath  the  names  of  the  witnesses 
whose  testimony  is  desired,  and  the  particular  facts  which 
can  be  proven  by  them;  and  the  affidavits  of  such  witnesses 
themselves  should  be  produced,  or  a  sufllcient  reason  given 
for  failing  to  produce  them.i 

§  454.  A  contested  election  case,  whatever  the  form  of 
the  proceeding  may  be,  is  in  its  essence  a  proceeding  in 

*  Qiddings  v.  Clark,  supra.    See  same  report  for  difcussion  as  to  what 
constitutes  the  proper  degree  of  diligence  in  such  a  case. 


334  ELECTIONS.  [chap.  XIII. 

which  the  people — the  constituency — are  primarily  and  prin- 
cipally interested.  It  is  not  a  suit  for  the  adjudication  and 
settlement  of  private  rights  oimply.  It  follows  that  the  par- 
ties to  the  record  can  not,  by  stipulation  or  otherwise,  dis- 
continue or  compromise  a  case  of  this  character  without  the 
consent  and  -approval  of  the  court  or  tribunal  trying  it.  Nor 
should  such  consent  ever  be  given,  unless  the  Court  giving 
it  is  sufficiently  advised  to  be  able  to  say  that  it  is  for  the  in- 
terest of  the  public  to  do  so.  * 

§  456.  In  a  case  of  quo  warranto  instituted  for  the  pur- 
pose of  trying  the  right  of  an  individual  to  hold  a  public 
office,  the  people  are  understood  to  be  interested  as  a  body  in 
the  investigation ;  and  therefore  the  Attorney  General  or  other 
officer  holding  a  similar  relation  to  the  public,  must  repre- 
sent the  people,  and  is  the  only  person  whose  stipulation  can 
be  acted  upon  so  as  to  affect  the  people.  It  was  accordingly 
held  in  Michigan,  that  the  court  should  not  consider  a  state- 
ment of  facts  agreed  to  between  the  relator  and  the  respond- 
ent, and  not  signed  by  the  Attorney  General.*  And,  as  we 
have  already  seen,  substantially  the  same  rule  prevails,  in  all 
cases  of  contested  election,  whether  in  the  form  of  a  quo 
warranto,  or  by  statutory  proceedings. 

§  456.  While  a  continuance  or  postponement  for  a  brief 
period  of  time  may  be  allowed  in  a  contested  election  case, 
where  the  court  or  tribunal  trying  the  same  shall  in  its  dis- 
cretion believe  that  the  ends  of  justice  will  be  subserved 
thereby ,3yet,  as  we  have  seen,  the  ordinary  rules  governing 
applications  for  continuances,  in  the  nature  of  the  case,  can 
not  apply  to  a  litigation  of  this  kind.  The  proceedings  muDt 
be  regarded  as  in  their  nature  so  far  summary,  as  to  take 
them  out  of  the  operation  of  the  general  rule,  which  allows 
continuances  from  term  to  term,  in  the  discretion  of  the  court.* 

1  Mann  u   Cassiday,   1   Brewst.,  43;  People  v.  Holden,  28  Cal.,  139; 
Kneass'  Case,  2  Pars.,  570;  Collings'  Case,  Bright  Elec.  Ca&,  513. 
^  People  V.  Pratt,  15  Mich.,  184;  Crawford  v.  Molitor,  23  Mich.,  341. 
»[Lord  V.  Dunster,  79  CaL,  477.J 
*  Keller  v.  Chapman,  84  CaL,  635.     [Section  4710  of  the  Revised  Stat- 


CHAP.  XIII.]  CONTESTED    ELECTIONS.  336 

[§  4o6a.  It  has  been  held  by  the  House  of  Kepresenta- 
tives  of  the  United  States,  that  where,  pending  a  contest  in 
the  House,  and  after  the  pleadings  are  made  up  and  the 
proof  taken,  the  contestee  dies  and  a  successor  is  elected  to 
fill  his  unexpired  term,  the  seat  of  the  successor  depends 
upon  the  election  of  the  original  contestee,  and  that  he  is 
in  consequence  bound  by  the  pleadings  and  proof  in  the 
original  contest  and  by  a  decision  afterwards  rendered 
therein.]  ^ 

§  457.  The  House  of  Representatives  of  the  United 
States,  in  construing  a  State  law,  will  follow  the  construction 
given  it  by  the  authorities  of  the  State  whose  duty  it  is  to 
construe  and  execute  it.  Where  a  given  construction  has 
been  adopted  and  acted  upon  by  the  State  authorities,  the 
Federal  government  should  abide  by  and  follow  it.  It  was  so 
held  by  the  House  of  Representatives  of  the  United  States 
in  the  matter  of  the  election  of  Representative  from  the 
State  of  Tennessee.^  The  report  of  the  committee  has  this 
language : 

"  It  is  a  well  established  and  most  salutary  rule,  that  where 
the  proper  authorities  of  the  State  government  have  given  a 
construction  to  their  own  Constitution  or  statutes,  that  con- 
struction will  be  followed  by  the  Federal  authorities.  This 
rule  is  absolutely  necessary  to  the  harmonious  working  of 
our  complex  governments,  State  and  I^ational,  and  your  com- 
mittee are  not  disposed  to  be  the  first  to  depart  from  it." 

And  in  the  case  of  Burch  v.  Van  JSorn^  the  House  re- 
fused to  go  into  an  inquiry  as  to  the  validity  of  the  new 
Constitution  of  Missouri,  upon  the  ground  that  it  had  been 

utes  of  Missouri,  which  requires  the  contest  of  an  election  to  be  tried 
at  the  first  term  of  the  court  held  fifteen  days  after  the  oflScial  count 
of  the  votes  and  service  of  notice  of  contest,  unless  continued  by  con- 
sent or  for  good  caiise  shown,  is  directory  only.  Kraleman  v.  Seppel, 
57  Mo.  App.,  598.] 

1  [Mackey  v.  O'Connor,  2  Ells.,  561.] 

2  42d  Congress. 

'  2  Bart.,  205.  [For  a  discussion  of  this  rule,  see  majority  and  minority 
committee  reports  in  Lynch  v.  Chalmers,  2  Ells.,  338.] 


336  ELECTIONS.  [chap.  XIII. 

recognized  as  valid  by  the  people  and  by  all  the  depart- 
ments of  the  State  government. 

[§  4:57a.  In  the  case  of  Clayton  v.  BrecJcenridge,  the  ques- 
tion arose  whether  the  House  of  Kepresentatives  should  be 
bound  by  the  result  of  the  trial  of  a  criminal  case  where 
parties  charged  with  election  frauds  had  been  acquitted.  It 
was  there  held  that  such  a  trial  was  not  an  adjudication 
binding  on  the  House  in  a  case  involving  the  same  frauds.]  ^ 

§  458.  When  a  contest  is  tried  before  a  legislative  body, 
under  a  law  providing  a  special  mode  of  proceeding,  costs 
will  not  be  allowed  except  by  the  action  of  such  legislative 
body.     They  cannot  be  recovered  by  suit.' 

1  [Row.,  679.] 

'Garrard  v.  Gallagher,  11  Nev.,  382. 


CHAPTER  XIV. 
CONTESTED  ELECTIONS— EVIDENCE. 

459.  Ordinary  rules  of  evidence  apply. 

459.  Presumption  as  to  oflficial  integrity. 

460.  Record  evidence. 

461.  State  laws  rules  of  decision  in  Congress. 

462.  When  necessary  to  prove  number  of  qualified  electors  in  given 

territory. 

463.  Census  of  population. 

464.  Official  list  of  freeholders  under  Virginia  statute. 

465.  Land  books  of  the  county  under  same. 

466.  Official  list  of  registered  voters. 

466a.  Vote  accepted  by  the  judges  of  election  prima /acie  legal. 

467.  Presumption  that  person  alien  born  who  has  voted  was  qualified. 

468.  Want  of  naturalization,  how  established. 

468.  Fraudulent  naturalization  papers. 

469.  May  be  attacked  by  parol  evidence. 

469.  Proof  of  non-residence. 

470.  Registration  not  conclusive  of  right* 

471.  Ballots  as  evidence. 

473.    Provisions  for  safe  keeping  must  be  strictly  followed. 
473,  474.    Rule  as  to  proof  that  ballots  have  not  been  tampered  with. 
475.    Construction  of  statutes  requiring  preservation  of  ballota 
476,477.    Recount. 

478.  When  ballots  lose  their  character  as  primary  evidence. 

479.  Loss  or  destruction  of  ballots,  secondary  evidence. 

480.  Judge  Cooley's  views. 

481.  Importance  of  rule  requiring  proof  of  preservation  and  produc- 

tion of  the  identical  ballots  cast. 

482.  Inspection  of  ballot,  when  ordered. 

482.    Correction  of  return  by  reference  to  ballot. 
83,  484.    Declarations  of  illegal  voters  as  to  how  they  voted. 
^84    Conflict  of  authority  as  to  their  admissibility. 
)i84    The  English  rule. 
484.    Rule  in  New  York  and  Wisconsin. 
484.    Decisions  in  other  States. 
485-487.    Discussion  of  the  question  in  the  House  of  Representatives 

of  the  United  States. 
488,  489.    Preservation  of  secrecy  of  ballot. 

S3 


338  ELECTIONS.  [chap.  XIV. 

§  489-491.    Voter  cannot  be  compelled  to  divulge  for  whom  he  voted. 
492-494    But  this  rule  does  not  protect  one  who  votes  illegally. 

492.  Voter  may  waive  his  privilege. 

493.  Circumstantial  evidence  admissible. 

495.  Rvde  as  to  disposition  of  illegal  votes  in  the  absence  of  proof 

showing  for  whom  they  were  cast. 

496.  When  new  election  should  be  ordered. 

497.  Consequences  of  neglect  to  furnish  proof  within  reach  of  party. 

498.  Ballots  marked  in  violation  of  law  generally  admissible. 

499.  Character  of  proof  required  to  vitiate  a  vote  received  and 

counted  by  the  election  board. 

500.  Weight  to  be  given  to  decision  of  judges  of  election, 

501.  Canvass  by  city  council  prima  facie  evidence. 

502.  General  rule  for  solving  questions  of  evidence  in  contested  eleo- 
*  tion  cases. 

503.  Returns  and  election  papers  may  be  Impeached  upon  quo  war- 

ranta 
503.    Parol  evidence  admissible  to  impeach. 
504r-506.    Tally-sheets,  if  required  by  law  to  be  kept,  admissible  in 

evidence. 
507.    Poll  books  prima  facie  evidence  only. 

507.  May  be  impeached  for  fraud. 

508.  Return  must  be  signed. 

509.  Held  admissible  for  some  purposes,  though  unsigned,  If  otheiv 

wise  proved. 

510.  511.    Effect  of  entire  disregard  of  the  law  by  election  officers. 

512.  Evidence  of  appointment  of  inspectors  of  election. 

513.  Proof  of  true  vote  by  secondary  evidence. 

518.  Correction  of  final  return  by  reference  to  primary  returns. 

514  Absence  of  oath  will  not  vitiate  return. 

515.  Rule  as  to  setting  aside  returns. 
515-517.    Illustrations. 

518.  Distinction  between  rejecting  return  and  setting  aside  election. 

519.  State  statute  regulating  elections  not  binding  upon  Congress. 
6S0.  But  decisions  of  State  tribunals  under  such  statutes  jpn'ma  facie 

evidence. 

521.  Rule   as  to  proving  votes  when  return  has  been  rejected. 

522.  Failure  of  the  officers  of  one  of  several  precincts  to  make  return. 

523.  524    Rule  as  to  rejection  of  entire  poll. 

525.  Proof  that  officers  of  election  were  not  sworn, 

526.  Proof  of  alteration  of  return. 

527.  Not  necessary  to  show  intentional  wrong  on  part  of  election 

officer  in  rejecting  vote. 
5S7a.  Rule  in  House  of  Representatives  as  to  counting  votes  of  legal 

voters  rejected  at  the  polls. 
5275.  Rule  in  Arkansas  and  other  States. 


OHAP.  irV.]  CONTESTED   ELECTIONS.  839 

§  459.  The  general  rule  is  that  the  ordinary  rules  of  evi- 
dence apply  as  well  to  election  contests  as  to  other  cases. 
The  evidence  must  therefore  be  confined  to  the  point  in  issue, 
and  must  be  relevant.  The  burden  of  proof  is  always  upon 
the  contestant,  or  the  party  attacking  the  official  return  or 
certificate.  The  presumption  is  that  the  officers  of  the  law 
charged  with  the  duty  of  ascertaining  and  declaring  the  re- 
sult have  discharged  that  duty  faithfully.^  In  a  contested 
election  case,  however,  where  the  question  is,  who  received 
the  highest  number  of  votes,  this  presumption  may  be  re- 
butted and  overcome  by  proof.  If  a  disqualified  voter  de- 
clines to  answer  as  to  how  he  voted,  or  if  he  cannot  be  found 
so  as  to  be  examined  as  a  witness,  a  good  deal  of  latitude 
should  be  allowed  in  showing  the  fact  by  circumstantial  evi- 
dence. It  may  be  shown  that  an  illegal  voter  asked  for  a 
particular  ticket  at  the  poll ;  that  no  scratched  tickets  were 
voted,  and  the  like.^ 

§  460.  Eecord  evidence  is,  of  course,  admissible  on  the  trial 
of  a  case  of  contested  election  in  the  House  of  Kepresenta- 
tives  of  the  United  States,  to  the  same  extent  and  for  like  pur- 
poses as  in  courts  of  justice,  and  in  the  trial  of  ordinary  civil 
actions.  The  question  may  be  raised  whether  evidence  of  this 
character  can  be  offered  for  the  first  time  on  the  trial  ?  It  may 
be  said  that  it  should  be  produced  before  an  officer  taking  tes- 
timony, in  the  presence  of  the  opposite  party,  and  put  in  evi- 
dence within  the  time  required  for  completing  the  taking  of 
the  testimony  in  the  case.  And  this  is  undoubtedly  the  cor- 
rect practice ;  for  if  evidence  of  this  character  is  to  be  used, 
it  is  but  fair  that  the  party  against  whom  it  is  to  be  offered 
should  have  notice  of  it  in  time  to  offer  evidence  in  response 
to  it.  It  may  therefore  be  laid  down  as  the  correct  rule  upon 
the  subject,  that  a  party  desiring  to  use  a  record  as  evidence 
in  such  a  case  shall,  at  a  time  and  place  which  has  been  fixed 
for  taking  testimony,  and  of  which  due  notice  has  been  given, 

1  [Garrison  v.  Mayo,  Mob.,  55;  Rigsbee  v.  Durham,  99  N.  C,  341.] 

2  Thompson  v,  Ewing,  1  Brewst.,  68-9.  As  to  evidence  in  prosecutions 
for  violation  of  election  laws,  see  Chap.  XVIIL 


340  ELECTIONS.  [chap.  XIV. 

offer  such  record,  or  a  duly  authenticated  copy  thereof,  in  evi- 
dence, and  cause  it  to  be  spread  upon  the  record.  It  is  im- 
possible here  to  designate  the  particular  documents,  papers 
or  books  which  are  included  in  the  term  "  record  evidence," 
or  to  specify  the  particular  mode  of  authenticating  copies 
thereof,  so  as  to  make  them  admissible.^  These  must  depend 
largely  upon  local  customs  and  laws.  It  is  perhaps  enough 
to  say  that  any  record  or  certified  copy  which  would  be  ad- 
missible as  evidence  in  the  courts  of  justice  of  the  country, 
where  a  similar  issue  is  involved,  may  be  admitted  in  a  con- 
tested election  case  in  the  House  of  Eepresentatives. 

§  461.  Prior  to  the  adoption  by  Congress  of  any  statute 
regulating  the  mode  of  procuring  evidence  in  contested  elec- 
tion cases,  the  practice  was  conformed  as  far  as  possible  to 
the  laws  of  the  State  from  which  any  case  might  be  brought.- 
And  there  is  no  doubt  but  either  House  of  Congress  should 
regard  the  laws  of  the  States  as  rules  of  decision  upon  any 
point  not  covered  by  Congressional  statute  or  Federal  Con- 
stitution.' 

§  462.  "Where  it  appears  clearly  that  a  statute  requires 
the  assent  of  two-thirds  or  any  other  proportion  of  the  qual- 
ified electors  residing  in  a  particular  territory  to  be  expressed 
by  ballot,  it  may  become  necessary,  in  order  to  determine 
the  result,  to  ascertain  the  whole  number  of  persons  within 
such  territory  possessing,  at  the  time  of  the  election,  the 
qualifications  of  electors;  and  in  determining  this  question 
the  latest  registration  books  kept  under  a  law  of  the  State 
are  competent  evidence,  subject,  however,  to  be  corrected  by 
proof  to  show  deaths,  removals,  etc.,  subsequently  to  the  reg- 
istration.* Where,  however,  the  statute  provides  in  general 
terms  that  the  election  shall  be  determined  by  a  "  majority 

1  [The  family  record  showing  the  date  of  birth  of  a  person  whose  age 
is  a  material  question  is  better  evidence  than  any  statement  of  its  con- 
tents, and  if  relied  upon  should  be  produced  and  properly  identified. 
Kreitz  v.  Behrensmeyer,  125  IlL,  141.] 

2  Botts  V.  Jones,  1  Bart.,  73. 

8  See  case  of  Tennessee  Representatives,  42d  Congress. 
<  Hawkins  v.  Carroll  Co.,  50  Miss.,  735. 


CHAP.  XIV.]  CONTESTED   ELECTIONS.  341 

of  the  electors,"  it  will  be  held  to  mean  a  majority  of  the 
electors  voting;  and  in  ascertaining  the  result  under  such  a 
statute,  no  inquiry  as  to  the  whole  number  of  persons  en- 
titled to  vote  will  be  necessary  or  proper.^ 

§  463.  A  census  of  population  so  classified  as  to  show 
the  number  of  persons  in  each  county  possessing  the  quali- 
fications of  voters,  and  taken  by  sworn  oflQcers,  under  the 
authority  of  the  United  States,  is  admissible  in  evidence  as 
tending  to  show,  approximately  at  least,  the  number  of  voters 
in  any  given  county  at  the  time  such  census  was  taken,  and 
of  course  also  as  showing  approximately  the  number  of  voters 
in  such  county  at  the  time  of  an  election  held  shortly  before 
or  after  the  taking  of  such  census.''  But  of  course  this  is 
not  the  most  reliable  sort  of  evidence,  as  there  is  always 
great  room  for  mistakes  and  inaccuracies  in  the  taking  of  the 
census.  The  census  returns  are  by  no  means  conclusive,  and 
wiU  be  resorted  to  only  in  the  absence  of  other  satisfactory 
evidence,  as  when  there  is  some  proof  of  intimidation  and 
violence,  but  great  doubt  and  uncertainty  as  to  how  many 
legal  voters  were  by  this  means  deprived  of  the  right  to  vote. 
In  such  a  case,  if  it  appear  from  the  returns  of  a  census 
taken  about  the  time  of  the  election  that  the  vote  was  an 
ordinarily  full  one,  it  may  be  fairly  inferred,  in  the  absence 
of  other  evidence,  that  there  were  not  a  large  number  of 
persons  deterred  from  voting  at  such  election. 

§  464.  A  similar  rule  to  the  one  here  stated  was  adopted 
in  the  early  case  of  Taliaferro  v.  Himgerford^  where  it  was 
held  that  the  land  list  prepared  under  a  statute  of  Yirginia, 
and  required  by  law  to  give  the  names  of  all  freeholders  for 
the  year  prior  to  an  election,  is  proper  to  be  considered  as 
prima  facie  evidence  of  the  number  of  voters  in  a  county, 
but  not  conclusive.     And  in  Blair  v.  Barrett^  it  was  held 

1  Everett  v.  Smith,  32  Minn.,  53. 

2Norris  v.  Handley,  42d  Congress;  Niblaok  r.  Walls,  43d  Ck>ngress; 
[Smith,  101]. 
3C1.  &H.,  346. 
« 1  Bart,  30a 


3i2  ELECTIONS.  [chap.  XIV. 

that  the  city  government  of  St,  Louis,  having  ordered  a  cen- 
sus to  be  taken  with  statistics  of  nationality  and  naturaliza- 
tion, such  census,  and  the  testimony  of  the  census  taker,  were 
admissible  in  evidence. 

§  465.  Under  a  statute  of  Yirginia  requiring  that  all  vot- 
ers shall  be  freeholders,  it  was  held  that  the  land  books  of 
the  county  were  admissible  in  evidence  to  show  who  were 
the  freeholders,  they  being  regularly  certified  by  the  clerk 
of  the  county  to  be  correct.  These  books  were  made  out 
annually  under  the  laws  of  Yirginia,  and  were  intended 
to  contain  a  list  of  all  the  separate  tracts  of  land  and  the 
owners'  names.^  These  books  were  undoubtedly  admissible 
upon  the  same  principle  that  census  returns  are  admissible 
in  evidence;  but  they  are  oxAj  prima  facie  and  approxi- 
mately correct.  Books  and  records  of  this  character  are 
necessarily  more  or  less  inaccurate  and  erroneous,  and  do 
not  have  the  conclusive  character  which  attaches  to  some 
other  public  records. 

§  466.  "Where  the  statute  provides  for  a  list  of  voters  to 
be  prepared  by  the  selectmen  of  the  town  and  used  at  the 
election,  such  list  is  to  be  regarded  as  an  oflGLcial  document, 
and  is  itself  the  best  evidence  upon  the  question  whether 
the  name  of  a  particular  voter  is  upon  it.  It  is  therefore 
not  competent  for  a  party  to  show  by  parol  that  his  name 
was  on  such  voting  list,  without  first  giving  notice  to  pro- 
duce the  list.2  And  it  was  further  held  in  the  same  case 
that  the  fact  that  a  person's  name  is  on  the  voting  list  is 
only  prima  facie  evidence  of  his  right  to  vote,  and  the  se- 
lectmen may  strike  off  the  name  and  reject  the  vote,  if  they 
can  prove  that  he  was  not  entitled  to  vote.  See  also  Hv/mph- 
rey  v.  Glingman? 

[§  466a.  A  vote  accepted  by  the  judges  or  commissioners 
holding  an  election  is  prima  facie  legal.  Before  it  can  be 
thrown  out  for  illegality  it  must  be  satisfactorily  shown  to 

1  Loyall  V.  Newton,  CI.  &  H.,  520. 

2  Harris  v.  Granville,  Whitcomb  et  al,,  4  Gray  (Mass.),  433. 
»5Metc.,  163,  168. 


CHAP.  XIV.]  CONTESTED   Ei^ECTIONS.  343 

have  been  cast  by  one  not  legally  qualified  to  vote  —  that 
is  to  say,  the  presumption  of  legality  must  be  overcome  by 
a  clear  preponderance  of  competent  evidence.]  ^ 

§  467.  It  seems  to  be  quite  well  settled  that  where  one 
who  is  alien  born  has  voted  at  an  election,  the  law  presumes 
that  he  has  been  naturalized  until  the  contrary  is  shown.^  To 
presume  the  reverse  would  be  to  presume  that  a  crime  has 
been  committed,  but  the  law  always  presumes  innocence.  It 
is  true  that  this  involves  the  necessity  of  proving  a  negative, 
a  very  difficult  thing  to  do,  but  often  necessary  in  order  to 
charge  a  party  with  a  criminal  offense.'  The  very  great 
difficulty,  however,  of  proving  that  a  person  has  not  been 
naturalized  would  seem  to  require  that  slight  proof  ought  to 
be  sufficient  to  shift  the  burden.  Thus,  if  it  be  shown  that 
he  claimed  that  aliens  had  the  right  to  vote ;  or  if  he  has 
made  declarations  or  admissions  to  the  effect  that  he  has  not 
been  naturalized;  or  if  he  produces  as  the  evidence  of  his 
citizenship  a  paper  showing  that  he  has  declared  his  inten- 
tion to  become  a  citizen  only ;  or,  perhaps,  if  when  he  is 
called  as  a  witness  he  refuses  to  answer  whether  he  has 
been  naturalized  or  not,  or  to  say  when  or  where,  or  by 
what  court,  he  was  naturalized, —  in  any  of  these  cases  the 
presumption  that  such  a  voter  was  duly  naturalized  ought 
to  be  regarded  as  so  far  overcome  as  to  require  the  party 
seeking  to  sustain  his  vote  to  produce  affirmative  evidence 
of  naturalization,  a  thing  not  very  difficult  to  do,  since  there 
is  always  a  record,  and  the  voter  must  be  presumed  to  know 
where  it  is.  There  are  in  the  United  States  many  hun- 
dreds of  courts  possessing  the  power  to  grant  naturalization ; 

1  [Smith  V.  Jackson,  Row.,  9;  Lowe  v.  Wheeler,  3  Ells.,  61;  Findley  v. 
Bisbee,  1  Ells.,  74;  Perry  v.  Ryan,  68  III,  172,] 

2  [Gumm  V.  Hubbard,  97  Mo.,  311.  Where  the  statute  of  a  State  re- 
quires that  before  a  person  alien  born  can  be  permitted  to  vote  he  must 
produce  to  the  proper  officers  a  duly  sealed  and  certified  copy  of  his 
declaration  of  intention,  he  must  produce  such  copy,  even  if  not  chal- 
lenged, and  a  failure  to  do  so  will  render  his  vote  void.  Bisbee  v.  Fin- 
ley,  2  Ells.,  173.] 

'  New  Jersey  Case,  1  Bart.,  19,  34 


544  ELECTIONS.  [chap.  XIV. 

and  to  require  in  any  case  that  affirmative  proof  be  offered 
that  no  one  of  such  courts  has  ever  granted  naturalization 
to  a  particular  person  would  be  to  require  what  is  prac- 
tically impossible. 

§  468.  In  a  contested  election  case,  where  it  is  alleged 
that  certain  aliens  voted  illegally,  without  having  been 
naturalized  according  to  law,  parol  evidence  is  admissible  to 
show  that  naturalization  papers  were  fraudulently  issued  or 
fraudulently  procured.  Thus,  in  Wisconsin  it  has  been  held 
that  where  oaths  (or  affirmations)  in  the  form  required,  for 
aliens  declaring  their  intention  to  become  citizens,  were 
signed  in  blank  by  the  clerk  of  a  circuit  court,  and  so  de- 
livered by  him  to  a  justice  of  the  peace,  to  be  by  him  filled 
out  with  the  date  and  names  of  the  persons  subscribing 
them,  etc.,  and  the  oath  was  in  fact  administered  by  the  jus- 
tice, and  not  (as  it  purported  to  have  been)  by  the  clerk, 
these  facts  might  be  shown  by  parol,  and  the  votes  of  such 
aliens  must  be  rejected.^  It  is  very  true  that  the  judgment 
of  a  court  of  competent  jurisdiction,  in  the  matter  of  the 
naturalization  of  a  citizen,  is  as  conclusive  as  its  judgment  in 
any  other  matter  within  its  jurisdiction.  But  it  ii  always 
competent  to  show  that  the  parties  were  not  within  the  ju- 
risdiction of  the  court ;  and  if  the  act  of  pretended  naturali- 
zation was  in  fact  the  act  of  the  clerk  alone,  and  not  in  any 
proper  sense  the  act  of  the  court,  it  would  be  a  monstrous 
doctrine  to  hold  that  the  certificate  bearing  the  clerk's  sig- 
nature and  seal  is  conclusive.  Such  a  rule  would  permit  the 
party  who  committed  the  fraud  to  protect  himself  by  his 
own  fraudulent  certificate. 

§  469.  For  the  purpose  of  showing  that  non-residents 
have  voted,  witnesses  are  often  called  to  testify  that  persons 
whose  names  appear  upon  the  roll  as  having  voted  are  not 
known  to  them  as  residents  of  the  county  or  voting  precinct, 
as  the  case  may  be.  This  kind  of  evidence  is  admissible  for 
what  it  is  worth,  but  it  is  manifest  that  its  value  must  de- 
pend upon  circumstances.     If  the  district  or  territory  within 

i  State  V.  Stumpf,  23  Wis.,  630. 


■CHAP.  XIV.]  CONTESTED   ELECTIONS.  345 

which  the  voter  must  reside  is  large  or  very  populous,  and 
the  witness  has  not  an  intimate  and  extensive  acquaintance 
with  the  inhabitants,  the  evidence  will  be  of  little  value,  and 
standing  alone  will  avail  nothing.  But  on  the  other  hand,  if 
such  district  or  territory  is  not  large  or  populous,  and  if  the 
witness  shows  that  his  acquaintance  with  the  inhabitants  is 
such  that  he  could  scarcely  fail  to  know  any  person  who  may 
have  resided  therein  long  enough  to  become  a  voter,  his 
evidence  may  be  quite  satisfactory,  especially  if  it  further 
appears  that  soon  after  the  election  the  alleged  non-resident 
voter  could  not  be  found  in  the  district  within  the  limits  of 
which  all  voters  must  reside.  Proof  of  this  character  must 
at  least  be  regarded  as  sufficient  to  shift  the  burden  upon 
the  party  claiming  that  the  vote  of  such  alleged  non-resident 
be  counted,  and  require  him  to  show  affirmatively  that  he  is 
a  honajide  resident.  It  was  held  under  the  Constitution  of 
Kentucky,  which  only  required  residence  in  the  county,  that 
no  name  should  be  stricken  from  the  polls  as  unknown  upon 
the  testimony  of  one  witness,  only,  that  no  such  person  is 
known  in  the  county.  Also,  that  where  a  man  of  like  name 
is  known,  residing  in  another  county,  some  proof,  direct  or 
circumstantial,  other  than  finding  such  a  name  on  the  poll 
book,  will  be  required  of  his  having  voted  in  the  county  or 
precinct  where  the  vote  is  assailed.^  It  was  further  held  in 
the  same  case  that  when  the  name  of  a  particular  person  is 
found  on  the  poll  book  as  having  voted,  proof  that  an  indi- 
vidual of  that  name  resides  in  the  county  and  is  a  minor  is 
not  of  itself  sufficient  to  strike  out  the  vote.  Some  further 
proof,  direct  or  circumstantial,  should  be  required  to  show 
that  the  vote  was  in  fact  cast  by  such  minor. 

§  470.  The  fact  that  a  voter  has  been  registered  under  a 
statute  providing  for  the  registration  of  voters,  and  author 
izing  a  board  of  registration  to  inquire  and  decide  as  to  the 
qualifications  of  persons  applying  for  registration,  is  by  no 
means  conclusive  as  to  his  right.  It  is  competent  to  intro- 
duce evidence  on  the  trial  of  an  election  contest  to  show 

1  Letcher  v,  Moore,  CL  «fe  H.,  715,  749. 


346  ELECTIONS.  [chap.  XIV. 

that  persons  registered  as  voters  under  such  a  statute  were 
nevertheless  not  legal  voters.^ 

§  471.  "Where,  as  is  the  case  in  several  of  the  States,  the 
statute  provides  a  mode  of  preserving  the  identical  ballots 
cast  at  an  election,  for  the  purpose  of  being  used  as  evidence 
in  case  of  contest,  such  statute,  and  particularly  those  pro- 
visions which  provide  for  the  safe  keeping  of  such  ballots, 
must  be  followed  with  great  care.  The  danger  that  the  bal- 
lots may  be  tampered  with  after  the  count  is  made  known, 
especially  if  the  vote  is  very  close,  is  so  great  that  no  oppor- 
tunity for  such  tampering  can  be  permitted.  Such  ballots, 
in  order  to  be  received  in  evidence,  must  have  remained  in 
the  custody  of  the  proper  officers  of  the  law  from  the  time 
of  the  original  official  count  until  they  are  produced  before 
the  proper  court  or  officer,  and  if  it  appear  that  they  have 
been  handled  by  unauthorized  persons,  or  that  they  have 
been  left  in  an  exposed  and  improper  place,  they  cannot  be 
offered  to  overcome  the  official  count.'^  In  Butler  v.  Leh- 
man^ supra^  the  House  of  Representatives,  after  a  full  dis- 
cussion, sustained  the  minority  of  the  committee  in  rejecting 
a  recount,  on  the  ground  that  the  ballot-boxes  had  not  been 
so  kept  as  to  rebut  a  reasonable  presumption  that  they  had 
been  tampered  with.' 

§  472.  In  the  case  of  People  v.  Livingstone,^  the  Court  of 
Appeals  of  Kew  York  held  that  when  a  ballot-box  and  the 
ballots  therein  are  offered  in  evidence,  and  there  is  proof 
that  the  box  has  not  been  kept  in  all  respects  as  required  by 
law,  this  is  not  of  itself  sufficient  under  the  statute  of  that 
State  to  authorize  the  court  to  exclude  the  evidence  from 
the  consideration  of  the  jury.*    In  such  a  case  the  court, 

1  Preston  v.  Culbertson,  58  Cal.,  198;  [Langhammer  v.  Munter,  80  Md., 
518J. 

2  See  Gooding  u  Wilson,  Smith,  79;  Butler  v.  Lehman,!  Bart.,  353; 
Kline  v.  Verree,  Id.,  381;  [Hughes  v.  Holman,  230reg.,  48;  Tibbe  v.  Smith, 
108  Cal.,  101;  Hartman  v.  Young,  17  Oreg.,  150]. 

*  Upon  this  subject  see  Hudson  v.  Solomon,  19  Kan.,  177. 
<80Ky.,  66. 

5  [Apple  V.  Bancroft,  158  IlL,  649;  Sone  v.  Williams,  130  Mo.,  530;  Da- 
vis V.  State,  75  Tex.,  420.] 


CHAf.  XIV.]  CONTESTED   ELECTIONS.  347 

with  some  hesitation,  concluded  that  it  should  be  left  to  the 
jury  to  determine,  upon  all  the  circumstances  of  the  case, 
whether  the  ballots  constitute  more  reliable  evidence  than 
the  inspector's  certificate.^  It  was,  however,  in  the  same 
case,  further  held  that  the  party  offering  such  ballots  in 
evidence  must  show  affirmatively  that  they  have  not  been 
tampered  with,  and  that  they  are  the  identical  ballots  cast 
at  the  election  in  question,'  "  Every  consideration  of  public 
policy,"  says  Church,  Chief  Justice,  "  as  well  as  the  ordinary 
rules  of  evidence,  require  that  the  party  offering  this  evi- 
dence should  establish  the  fact  that  the  ballots  are  genuine." 
The  burden  of  proof  in  such  a  case  does  not  rest  upon  the 
party  objecting  to  the  ballots  as  evidence.' 

§  473.  "Whether  the  provisions  of  a  statute  providing  for 
the  preservation  of  ballots  after  an  election  are  mandatory, 
or  only  directory,  was  one  of  the  principal  questions  in  this 
case,  and  is  considered  at  considerable  length  with  the  result 
above  indicated.  So  much  depends  upon  the  terms  of  the 
particular  statute  to  be  construed,  that  it  is  impossible  to 
lay  down  a  general  rule  applicable  to  all  cases;  but  the 
better  opinion  seems  to  be  that  if  the  deviation  from  the 
statutory  requirements  relative  to  the  manner  of  preserving 
the  ballots  has  been  such  as  necessarily  to  expose  them  to 
the  public  or  unauthorized  persons,  the  court  should  exclude 
them ;  but  if  the  deviations  have  been  slight,  or  of  such  a 
character  as  not  necessarily  to  render  doubtful  the  identity 
of  the  ballots,  the  question  of  their  identity  may  well  go  to 
the  jury  to  be  determined  upon  all  the  evidence.* 

1  [Ferguson  v.  Henry  (la.),  64  N.  W.  Rep.,  393.] 

2[Hartman  v.  Young,  17  Oreg.,  150;  Beall  v.  Albert,  159  111.,  126;  Fen- 
ton  V.  Scott,  17  Oreg.,  189.] 

3  [In  Wisconsin  ballots  are  required  to  be  totally  destroyed  after  a 
certain  time.  Where  this  has  not  been  done,  after  the  time  has  elapsed 
such  ballots  have  no  legal  existence,  and  are  not  admissible  in  evidence 
in  an  action  to  try  title  to  an  office.    State  v.  Bate,  70  Wis.,  409.] 

*[Mallett  V.  Plumb,  60  Conn.,  353;  Henderson  v.  Albright  (Tex.  Ct. 
App.),  34  S.  W.  Rep.,  992;  Fishback  v.  Bramel  (Wyo.),  44  Pao.  Rep.,  840.] 


348  BLEonoNs.  [chap.  xiy. 

§  474.  Although  the  general  rule  is  that  the  ballots  them- 
selves are  the  best  evidence  of  the  number  of  votes  cast,  and 
for  whom  cast,  yet  this  rule  can  have  no  application  to  a 
case  where  the  ballots  have  been  tampered  with  after  they 
were  deposited  in  the  ballot-box.  In  such  a  case  the  value 
of  the  ballots  as  evidence  is  almost  totally  destroyed,  and  the 
returns  made  by  the  officers  of  election  presiding  at  the  polls 
may  become  better  evidence  than  the  ballots.^  It  has  ac- 
cordingly been  held  that  where  the  ballots  cast  at  an  elec- 
tion were  not  returned  sealed,  and  there  was  evidence 
tending  to  show  that  the  package  of  ballots  had  been  opened 
and  changed  after  they  were  received  by  the  clerk,  the  board 
of  canvassers,  whose  duty  it  was  to  declare  the  result  of  the 
election,  were  at  liberty  to  determine  who  was  elected  upon 
inspection  of  the  returns  made  by  the  officers  of  election, 
and  a  court  trying  a  contest  growing  out  of  said  election 
adopted  the  result  arrived  at  in  this  mode  by  the  board  of 
canvassers.* 

§  475.  In  California  there  was  a  statute  requiring  the  pres- 
ervation of  the  ballots  in  the  clerk's  office  for  six  months. 
In  the  same  act  was  a  provision  requiring  the  preservation 
of  the  poll  list  and  tally  paper,  with  the  certificates  of  the 
officers  attached.  Under  this  statute  the  case  of  People  v. 
Holden  ^  arose.  The  defendant  in  that  case  was  returned  as 
elected  county  judge  by  five  majority,  and  the  relator  as 
defeated  by  that  number.  Upon  an  inspection  of  the  ballots 
cast  at  one  of  the  precincts  and  preserved  in  the  clerk's  office, 
under  the  law,  it  appeared  that  thirty-one  democratic  tickets 
had  been  cast,  and  that  the  name  of  Holden  was  on  all  of 
them  except  two,  from  which,  as  appeared  upon  inspection, 
his  name  had  been  torn  off.  Several  ballots  containing 
Holden's  name  having  been  thrown  out  for  other  causes,  the 
case  turned  upon  the  two  ballots  from  which  his  name  had 

1  [Andrews  v.  Judge  of  Probate,  74  Mich.,  278;  Bisbee  v.  Finley,  2 
Ells.,  172.] 
»  People  V.  Burden,  45  CaL,  241. 
»  28  CaL,  12a 


CHAP.  XIV.]  CONTESTED   ELECTIONS.  349 

been  torn,  and  the  question  was  whether  the  name  was  torn 
off  after  or  before  the  ballot  was  placed  in  the  box.  There 
was  no  evidence  upon  this  point,  and  the  court  held  that 
the  presumption  was  that  the  ticket  had  not  been  mutilated, 
and  that  the  name  had  been  torn  off  by  the  voter  before  vot- 
ing. The  evidence  consisted  of  the  certified  returns  and  poll 
list  on  the  one  hand,  and  the  ballots  on  the  other.  Here 
was  a  case  of  presumption  against  presumption.  The  law 
presumed  that  the  returns  were  correct,  and  it  also  presumed 
that  the  ballots  had  not  been  tampered  with.  The  tempta- 
tion to  tear  the  name  of  Holden  from  a  few  tickets,  and  thus 
change  the  result,  was  unquestionably  very  great,  while  it 
could  hardly  have  been  supposed  by  the  oflBcers  who  cer- 
tified the  township  returns  that  to  change  two  or  three  votes 
would  change  the  result.  The  soundness  of  the  ruling  is  seri- 
ously doubted  by  Mr.  Brightley,  in  his  note  to  this  case,^  and 
it  is  quite  certain  that  the  precedent  is  quite  an  unsafe  one. 
Before  the  ballots  should  be  allowed  in  evidence  to  overturn 
the  ofiBcial  count  and  return,  it  should  appear  affirmatively 
that  they  have  been  safely  kept  by  the  proper  custodian  of 
the  law . —  that  they  have  not  been  exposed  to  the  public  or 
handled  by  unauthorized  persons,  and  that  no  opportunity 
has  been  given  for  tampering  with  them.  If  this  is  believed 
to  be  a  rule  founded  upon  the  presumption  that  a  fraud  or  a 
crime  has  been  committed,  the  answer  is  that  the  rule  does 
no  more  than  to  make  choice  between  two  presumptions  of 
law,  which  in  this  instance  come  in  conflict,  and  cannot  both 
prevail.  In  such  a  case  the  question  is,  which  is  the  stronger, 
the  more  reasonable  and  the  safer  presumption  ?  And  in- 
asmuch as  the  ballots  are  counted  by  the  board  of  canvassers 
immediately  upon  the  closing  of  the  polls,  and  generally  be- 
fore there  has  been  an  opportunity  for  tampering,  and  when 
it  cannot  be  known  that  the  changing  of  a  few  votes  will 
change  the  result,  and  in  most  cases  by  a  board  composed  of 
friends  of  each  of  the  competing  candidates,  it  is  believed 
that  in  the  absence  of  all  proof,  in  case  of  a  conflict  between 

1  Bright  Elec.  Cas.,  484 


350  ELECTIONS.  [chap.  HT. 

the  tally  sheets  and  returns  on  one  side,  and  the  ballots  as 
they  are  found  to  be  at  some  period  after  the  election  is 
over,  and  after  the  state  of  the  votes  as  returned  has  been 
made  known,  on  the  other,  the  correctness  of  the  original 
official  canvass,  made  by  sworn  officers  at  the  time  of  the 
election,  should  be  presumed. 

§  476.  In  a  more  recent  case,  arising  under  the  same  stat- 
ute, the  Supreme  Court  of  California  refused  to  accept  the 
result  of  a  recount  because  it  was  not  shown  that  the  ballots 
had  been  in  the  interim  sealed  up  and  preserved  as  required 
by  law.^ 

§  477.  The  case  of  Archer  v.  Allen  ^  is  another  case  in 
which  there  was  a  recount  of  the  ballots  after  the  official 
count  had  been  made  and  the  result  announced.  The  official 
canvass  showed  the  election  of  the  incumbent  by  a  majority 
of  only  one  vote.  The  recount,  which  was  made  by  officers 
of  the  election  some  four  months  after  the  day  of  election, 
resulted  in  the  alleged  discovery  of  a  mistake  of  two  votes 
in  favor  of  contestant  —  just  sufficient  to  change  the  result. 
The  necessity  for  proving  affirmatively  that  the  ballots  had 
not  been  tampered  with  seems  to  have  been  felt  and  con- 
ceded by  the  contestant,  and  a  good  deal  of  testimony  was 
taken  upon  that  point  —  enough,  according  to  the  report  of 
the  majority  of  the  committee,  to  make  it  clear  that  the  bal- 
lots counted  at  the  second  and  unofficial  canvass  were  the 
identical  ballots  originally  deposited  in  the  box.  The  mi- 
nority of  the  committee,  however,  took  the  opposite  view, 
and  insisted  that  the  proof  of  identity  was  insufficient. 

After  an  elaborate  debate  in  the  House,  the  report  of  the 
majority  declaring  the  incumbent  not  duly  elected  was 
adopted,  but  the  resolution  giving  the  seat  to  the  contestant 
was  lost,  and  the  seat  thereby  became  and  was  declared 
vacant. 

^  People  V.  Burden,  45  CaL,  241.    See,  also,  Hudson  v,  Solomon,  10  Kan., 
177. 
21  Bart,  169. 


CHAP.  XIV.]  CONTESTED   ELECTIONS.  361 

§  4Y8.  The  original  ballots  are  undoubtedly  the  best  evi- 
dence where  their  identity  is  clearly  established.^  The  gov- 
erning rules  are  thus  well  stated  by  Brewer,  Judge,  in  Hud- 
son V.  Solomon: 

"  1st.  As  to  the  ballots  cast  at  an  election  and  a  canvass 
of  those  ballots  by  the  election  officers,  the  former  are  the 
primary  and  controlling  evidence. 

"  2d.  In  order  to  continue  the  ballots  controlling  as  evi- 
dence, it  must  appear  that  they  have  been  preserved  in  the 
manner  and  by  the  officers  prescribed  in  the  statute,  and  that 
while  in  such  custody  they  have  not  been  so  exposed  to  the 
reach  of  unauthorized  persons  as  to  afford  a  reasonable  prob- 
ability of  their  having  been  changed  or  tampered  with." '  If 
there  has  been  an  opportunity  for  tampering  with  ballots, 
they  lose  their  character  as  primary  evidence.' 

§  479.  Where  the  poll  books,  tally  sheets  and  ballots  are 
all  lost  or  destroyed,  secondary  evidence  is  admissible,*  and 
in  such  a  case  the  voters  themselves  may,  if  they  choose,  tes- 
tify as  to  how  they  voted;  but  they  cannot  be  compelled  to 
do  so  and  thus  violate  the  secrecy  of  the  ballot.  So,  also,  in 
such  a  case,  the  judges  and  clerks  who  canvassed  the  vote 
may  testify  as  to  the  number  of  votes  given  to  each  person 
voted  for ;  and  even  spectators  who  were  present  at  the  count 
and  heard  the  result  announced  and  inspected  the  papers  pre- 

1  Hudson  V.  Solomon,  19  Kan.,  177;  Dorey  v.  Lynn,  31  Kan.,  758;  [Mo- 
Duffier.  Davidson,  Mob.,  577;  Murphy  v.  Battle,  155  111.,  183;  Albert  v. 
Twohig,  35  Neb.,  563]. 

2  See,  also,  on  the  same  subject,  Newton  v.  Newell,  26  Minn.,  529;  Cog- 
land  V.  Beard,  65  Cal.,  58. 

'  Kingery  v.  Berry,  94  111.,  515;  [Frederick  v.  Wilson  (Minority  Report), 
Mob.,  406;  Atkinson  v.  Pendleton,  Row.,  45;  Martin  v.  Miles,  40  Neb.,  185; 
Spidle  V.  McCracken,  45  Kan.,  356.  The  return  of  the  judges  of  election 
in  an  election  contest  is  not  conclusive,  and,  the  ballots  not  having 
been  so  kept  that  they  might  not  have  been  changed,  the  parol  evidence 
of  the  judges  of  election  as  to  the  result  of  the  ballots  as  counted  and 
declared  at  the  polls  is  admissible.    Stemper  v,  Higgins,  88  Minn.,  222]. 

*  [Merritt  u  Hinton,  55  Ark.,  12.] 


352  ELECTIONS.  [chap.  XIV. 

pared  and  signed  by  the  oflBcers  recording  the  result  are 
competent  witnesses  in  such  a  case.^ 

§  480.  Concerning  the  admissibility  of  the  ballots  them- 
selves, in  evidence,  in  a  case  of  contested  election,  Judge 
Cooley,  in  his  Constitutional  Limitations,^  has  this  to  say : 

"But  back  of  t\n&  prima  facie  case  (made  by  the  certifi- 
cate of  election)  the  courts  may  go,  and  the  determinations 
of  the  State  board  may  be  corrected  by  those  of  the  district 
boards,  and  the  latter  by  the  ballots  themselves,  when  the 
hallots  are  still  in  existence,  and  have  heen  Icept  as  required 
hy  law.  If,  however,  the  ballots  have  not  been  kept  as  re- 
quired by  law,  and  surrounded  by  such  securities  as  the  law 
has  prescribed,  with  a  view  to  their  safe  preservation  as  the 
best  evidence  of  the  election,  it  would  seem  that  they  should 
not  be  received  in  evidence  at  all,'  or,  if  received,  that  it 
should  be  left  to  the  jury  to  determine,  upon  all  the  circum- 
stances of  the  case,  whether  they  constitute  more  reliable 
evidence  than  the  inspectors'  certificate,  which  is  usually  pre- 
pared immediately  on  the  close  of  the  election,  and  upon 
actual  count  of  the  ballots  as  then  made  by  the  officers  whose 
duty  it  is  to  do  so." 

§  481.  It  has  been  held  by  the  Supreme  Court  of  Missis- 
sippi that  "  evidence  that  one  of  the  registrars,  being  intoxi- 
cated, took  a  portion  of  the  ballots  in  a  handkerchief  away 
from  the  other  registrars,  and  did  not  return  them  until  next 
morning,  is  not  admissible  without  showing  that  some  of 
the  ballots  had  been  lost  or  altered,  or  that  the  plaintiff  was 
in  some  manner  affected  thereby."  *  This  decision  was  put 
upon  the  ground  that  the  misconduct  of  the  officer  was  a 
mere  irregularity,  and  did  not,  ihQveiovQ,  prima  facie,  affect 

1  Dixon  V.  Orr,  49  Ark.,  238;  4  S.  K  Rep.,  774;  Beardstown  v.  Virginia, 
81  111.,  541. 

2  Page  625. 

3  [Powell  V.  Holman,  50  Ark.,  85.  Where  spoiled  ballots  were  inter- 
mingled with  genuine  ballots  so  as  not  to  be  distinguishable,  held, 
that  the  ballots  could  not  be  received  to  set  aside  the  returns.  Hendee 
V.  Heyden,  42  Neb.,  760.] 

♦  Pradat  v.  Ramsay,  47  Miss.,  24. 


CHAP.  XIV.]  CONTESTED   ELECTIONS.  353 

the  result ;  but  this  was  evidently  a  misapplication  of  that 
rule.  One  of  the  most  important  and  imperative  require- 
ments of  the  law  of  elections  is,  that  the  ballots,  from  the 
time  they  are  cast  until  they  are  canvassed,  must  be  safely 
and  securely  kept.  Frauds  upon  the  ballot-box  are  very 
frequently  perpetrated  by  tampering  with  the  ballots  after 
they  are  cast  and  before  they  are  counted.  It  is  for  this  rea- 
son that  in  many  of  the  States  there  are  statutes  requiring 
that  the  ballots  be  publicly  canvassed  immediately  upon  the 
closing  of  the  polls.  These  are  most  excellent  statutes,  and 
the  author  has  found  with  surprise  and  regret  that  in  several 
of  the  States  there  are  laws  allowing  the  election  oflBcers  to 
hold  the  ballot-boxes  a  number  of  days  before  making  pub- 
lic the  canvass.  If  such  laws  had  been  framed  for  the  pur- 
pose of  enabling  corrupt  parties  to  perpetrate  frauds,  they 
could  scarcely  have  been  more  aptly  framed.^  It  is  clear 
that  where  the  law  which  requires  the  ballots  to  be  safely 
and  securely  kept  until  canvassed  and  the  result  announced 
has  been  so  grossly  violated  as  to  have  afforded  opportunity 
for  fraud  or  tampering,  the  burden  of  proof  should  be  shifted. 
If  the  ballots  have  been  kept  according  to  law,  the  presump- 
tions are  all  in  their  favor ;  but  if  a  drunken  man  has  been 
allowed  to  carry  them  away  and  keep  them  in  an  exposed 
place  over  night,  as  in  Pradat  v.  Bamsay,  sujpra^  the  pre- 
sumption is  against  them,  and  proof  should  be  required  that 
they  are  in  fact  the  real  ballots  cast.  In  all  such  cases  the 
evidence  should  go  to  the  jury,  and  they  should  determine, 
upon  the  whole  case,  whether  the  ballots  counted  were  in  fact 
the  same  ballots  cast. 

§  482.  Under  the  statutes  of  some  of  the  States  the  bal- 
lot is  numbered  to  correspond  with  the  number  of  the  voter 
by  whom  it  is  deposited,  and  by  this  means  it  is  possible  to 
ascertain  how  each  elector  has  voted.^  When  a  contest  arises 

^  Wallace  v.  Simpson,  42d  Congress. 

2  [Where  it  was  charged  that  the  ballots  of  certain  electors  were 
changed,  "  an  inspection  and  comparison  of  the  ballots  with  the  poll 
23 


354  ELECTIONS.  [chap.  XIV. 

in  any  of  the  States  where  a  statute  of  this  kind  is  in  force, 
it  often  happens  that  one  or  the  other  party  will  desire  an 
inspection  of  ballots  cast  by  persons  alleged  to  have  voted 
illegally.  In  such  cases  an  inspection  of  a  voter's  ballot 
should  not  be  ordered  until  the  evidence  is  all  in,  and  it  is 
shown  with  reasonable  certainty  that  the  ballot  has  been  ille- 
gally cast  and  that  an  examination  of  the  ballot  is  a  matter 
material  to  the  determination  of  the  contest.^ 

It  was  held  in  the  case  of  Bell  v.  Snyder'^  that  where  the 
return  failed  to  state  for  what  office  the  ballots  were  cast, 
the  ballots  themselves  showing  that  they  were  cast  for  oon- 
testee  for  Kepreseutative  in  Congress,  they  should  be  counted 
by  the  House. 

§  483.  It  often  appears  in  the  course  of  the  trial  of  a 
case  of  contested  election  that  votes  have  been  cast  by  per- 
sons not  qualified  to  vote,  and  in  such  cases  it  becomes  very 
important  to  ascertain  for  whom  such  votes  were  cast.  A 
question  of  much  importance  has  arisen  as  to  whether  the 
declarations  of  illegal  voters  made  not  under  oath  should 
be  received  to  show  the  fact  that  they  voted,  or  that  they 
were  not  legally  qualified  to  vote.  The  English  authori- 
ties, though  not  entirely  uniform,  are  generally  in  favor  of 
admitting  such  declarations,  and  perhaps  the  weight  of  au- 
thority in  this  country  is  the  same  way,  though  it  cannot 
be  denied  that  the  tendency  in  the  more  recent,  and  we  think 
also  the  better-considered  cases,  is  to  exclude  this  evidence 
as  hearsay.' 

§  484.  In  N^ew  York  and  in  Wisconsin  the  English  rule 
seems  to  have  been  adopted  and  such  declarations  admitted 
on  the  ground  that  the  voter  may  be  considered  a  party  to  the 
contest  in  such  sense  as  to  make  his  declarations  competent 

lists  should  be  allowed  in  connection  with  the  oral  evidence  in  refer- 
ence thereta"    Clan  ton  v.  Ryan,  14  Colo.,  419.] 

1  JBe  McCullough,  12  Phila.  (Pa.),  570. 

2  Contested  Elec.  Cas.,  1871  to  1876,  p.  247. 

'State  V.  Olin,  23  Wis.,  309,  319;  The  New  Jersey  Case,  1  Bart,  19; 
Vallandigham  v.  Campbell,  Id.,  230,  and  cases  there  cited;  [Crabb  v. 
Orth,  133  Ind.,  11;  Wallace  v.  McKinley,  Mob.,  185]. 


CHAP.  XIV.]  OOKTESTED   ELECTIONS.  8&5 

evidence.^  In  Illinois  the  English  rule  has  been  modified, 
and  the  law  of  that  State  is  that  the  voter  may  be  considered 
a  party  as  against  the  contestant,  and  that  his  declarations 
showing  his  want  of  qualification  to  vote  may  be  shown  after 
first  proving  by  evidence  aliunde  that  he  voted  adversely  to 
the  contestant.^  In  Arkansas  also  the  English  rule  has  been 
adopted  in  a  modified  form.  It  is  there  held  that  declara- 
tions by  voters  that  they  had  voted  illegally,  made  at  or  near 
the  time  and  place  of  the  election,  may  be  received  as  part  of 
the  res  gestae  of  the  election,  and  as  tending  to  show  a  fraudu- 
lent combination  for  the  purpose  of  carrying  the  election  by 
f raud'^ —  there  being  other  evidence  tending  to  show  the  same 
thing.' 

In  Kansas  the  English  rule  is  entirely  repudiated,  and  it  is 
there  held  that  statements  of  persons  who  had  voted,  made 
to  third  persons,  as  to  the  number  of  times  and  the  names 
under  which  they  claimed  to  have  voted,  were  inadmissible.* 
The  Supreme  Court  of  Kansas  said : 

"  It  is  the  testimony  of  what  other  persons  told  the  wit- 
ness, persons  not  parties  to  the  suit,  so  that  their  admissions 
could  be  receivable.  These  declarations  were  not  made  at 
the  polls  by  persons  conducting  the  election,  and  so  as  to 
make  part  of  the  res  gestce;  nor  do  they  accompany  a  princi- 
pal fact,  so  as  to  qualify  or  explain  it.  *  *  *  We  have 
examined  the  cases  of  People  v.  Pease^  State  v.  Olin,^  and 
the  note  to  Newland  v.  Graham^  and  so  far  as  they  enunciate 
any  principle  contrary  to  the  doctrine  here  announced  we 
disapprove  them." 

And  the  same  rule  substantially  has  been  adopted  in  Colo- 

1  People  V.  Pease,  27  N.  Y.,  45;  State  v.  Olin,  23  Wis.,  819. 

2  Beardstown  v.  Virginia,  81  IlL,  541. 

'Patton  V.  Coates,  41  Ark.,  111.  And  see  upon  same  general  subject, 
the  New  Jersey  Case,  1  Bart.,  19;  Vallandigham  v.  Campbell,  Id.,  223; 
Newland  u  Graham,  1  Bart,  5,  note;  S.  C,  3  McCord,  230, 

♦Gilleland  v.  Schuyler,  9  Kan.,  569. 

6  27N.  Y.,  45. 

6  23  Wis.,  319. 

7  3  McCord,  230. 


356  ELECTIONS.  [chap.  XTV^ 

rado,  where  such  declarations  by  voters  as  to  their  qnalifi ca- 
tions, made  after  the  election,  are  held  to  be  hearsay  only 
and  inadmissible.^ 

§  485.  The  soundness  of  the  rule  which  admits  this  species 
of  evidence  is  seriously  questioned  in  the  case  of  Cessna  v. 
Meyers?  The  report  in  that  case  presents  the  following  ob- 
jections to  the  rule : 

"  The  general  doctrine  is  usually  put  upon  the  ground  that 
the  voter  is  a  party  to  the  proceeding,  and  his  declarations 
against  the  validity  of  his  vote  are  to  be  admitted  against 
him  as  such.  If  this  were  true,  it  would  be  quite  clear  that 
his  declarations  ought  not  to  be  received  until  he  is  first 
shown,  aliunde^  not  only  to  have  voted,  but  to  have  voted 
for  the  party  against  whom  he  is  called.  Otherwise  it  would 
be  in  the  power  of  an  illegal  voter  to  neutralize  wrongfully 
two  of  the  votes  cast  for  a  political  opponent :  1st,  by  voting 
for  his  own  candidate;  2d,  by  asserting  to  some  witness 
afterward  that  he  voted  the  other  way,  and  so  having  his 
vote  deducted  from  the  party  against  whom  it  was  cast. 

"  But  it  is  not  true  that  a  voter  is  a  party  in  any  such  sense 
as  that  his  declarations  are  admissible  on  that  ground.  He 
is  not  a  party  to  the  record.  His  interest  is  not  legal  or  per- 
sonal. It  is  frequently  of  the  slightest  possible  nature.  If 
he  were  a  party,  then  his  admission  should  be  competent  as 
to  the  whole  case  —  as  to  the  votes  of  others,  the  conduct  of 
the  election  officers,  etc.,  which  it  is  well  settled  they  are  not. 
Another  reason  given  is,  that  the  inquiry  is  of  a  public 
nature,  and  that  it  should  not  be  limited  to  the  technical 
rules  of  evidence  established  for  private  causes.  This  is 
doubtless  true.  It  is  an  inquiry  of  a  public  nature,  and  an 
inquiry  of  the  highest  interest  and  consequence  to  the  public. 
Some  rules  of  evidence  applicable  to  such  an  inquiry  must  be 
established.  It  is  nowhere,  so  far  as  we  know,  claimed  that 
in  any  other  particular  the  ordinary  rules  of  evidence  should 
be  relaxed  in  the  determination  of  election  cases.   The  sitting 


& 


1  People  V.  Commissioners,  7  Cola,  190. 

2  42d  Congress  [Smith,  60]. 


CHAP.  XIV,]  CONTESTED   ELECTIONS.  .357 

member  is  a  party  deeply  interested  in  the  establishment  of 
his  right  to  an  honorable  oflBce.  The  people  of  the  district 
especially,  and  the  people  of  the  whole  country,  are  inter- 
ested in  the  question,  who  shall  have  a  voice  in  framing  the 
laws?  The  votes  are  received  by  election  officers,  who  see 
the  voter  in  person,  who  act  publicly  in  the  presence  of  the 
people,  who  may  administer  an  oath  to  the  person  offering 
to  vote,  and  who  are  themselves  sworn  to  the  performance 
of  their  duties.  The  judgment  of  these  officers  ought  not 
to  be  reversed,  and  the  grave  interests  of  the  people  imper- 
iled, by  the  admissions  of  persons  not  under  oath,  and  admit- 
ting their  own  misconduct. 

"  The  practice  of  admitting  this  kind  of  evidence  originated 
in  England.  So  far  as  it  has  been  adopted  in  this  country, 
it  has  been  without  much  discussion  of  the  reasons  on  which 
it  was  founded.  In  England,  as  has  been  said,  the  vote  was 
vi/va  voce.  The  fact  that  the  party  voted,  and  for  whom,  was 
susceptible  of  easy  and  indisputable  proof  by  the  record.  The 
privilege  of  voting  for  members  of  Parliament  was  a  fran- 
chise of  considerable  dignity,  enjoyed  by  few.  It  commonly 
depended  on  the  ownership  of  a  freehold,  the  title  to  which 
did  not,  as  with  us,  appear  on  public  registries,  but  would  be 
seriously  endangered  by  admissions  of  the  freeholder  which 
disparaged  it.  An  admission  by  the  voter  of  his  own  want 
of  qualification  was,  therefore,  ordinarily  an  admission 
against  his  right  to  a  special  and  rare  franchise,  and  an  ad- 
mission which  seriously  imperiled  his  title  to  his  real  estate. 
An  admission  so  strongly  against  the  interest  of  the  party 
making  it  would  seldom  be  made  unless  it  were  true.  It 
furnishes  no  analogy  for  a  people  who  regard  voting,  not  as 
a  privilege  of  a  few,  but  as  the  right  of  all,  where  the  vote, 
instead  of  being  vi/va  voce,  is  studiously  protected  from  pub- 
licity, and  where  such  admissions,  instead  of  having  every 
probability  in  favor  of  their  truth,  may  so  easily  be  made 
the  means  of  accomplishing  great  injustice  and  fraud,  with- 
out fear  of  detection  or  punishment. 

"  It  may  be  said  that  the  principle  of  the  secret  ballot 


358  ELECTIONS.  [chap.  XIV. 

protects  the  voter  from  disclosing  how  he  voted,  and,  in  the 
absence  of  power  to  compel  him  to  testify  and  furnish  the 
best  evidence,  renders  the  resort  to  other  evidence  necessary. 

"  The  committee  are  not  prepared  to  admit  that  the  pol- 
icy which  shields  the  vote  of  the  citizen  from  being  made 
known  without  his  consent  is  of  more  importance  than  an 
inquiry  into  the  purity  and  result  of  the  election  itself.  If 
it  is,  it  cannot  protect  the  illegal  voter  from  disclosing  how 
he  voted.  If  it  is,  it  would  be  quite  doubtful  whether  the 
same  policy  should  not  prevent  the  use  of  the  machinery  of 
the  law  to  discover  and  make  public  the  fact,  in  whatever 
way  it  may  be  proved.  It  is  the  publicity  of  the  vote,  not 
the  interrogation  of  the  voter  in  regard  to  it,  that  the  secret 
ballot  is  designed  to  prevent.  There  would  seem  to  be  no 
need  to  resort  to  hearsay  evidence  on  this  ground,  unless  the 
voter  has  first  been  called,  and,  being  interrogated,  asserts 
his  privilege  and  refuses  to  answer.  Even  in  that  case  a  still 
more  conclusive  objection  to  hearsay  testimony  of  this  char- 
acter is  this:  it  is  not  at  all  likely  to  be  either  true  or  trust- 
worthy. 

"The  rule  that  admits  secondary  evidence  when  the  best 
cannot  be  had  only  admits  evidence  which  can  be  relied  on 
to  prove  the  fact,  as  sworn  copies  when  an  original  is  lost,  or 
the  testimony  of  a  witness  to  the  contents  of  a  lost  instrument. 
Hearsay  evidence  is  not  admitted  in  such  cases,  and  is  only 
admitted  in  cases  where  hearsay  evidence  is,  in  the  ordinary 
experience  of  mankind,  found  to  be  generally  correct,  as  in 
matters  of  pedigree  and  the  like.  But  a  man  who  is  so 
anxious  to  conceal  how  he  voted  as  to  refuse  to  disclose  it  on 
oath,  even  when  the  disclosure  is  demanded  in  the  interest  of 
public  justice,  and  who  is  presumed  to  have  voted  fraud- 
ulently—  for  otherwise,  in  most  cases,  the  inquiry  is  of  no 
consequence  —  would  be  quite  as  likely  to  have  made  false 
statements  on  the  subject,  if  he  had  made  any.  To  permit 
such  statements  to  be  received  to  overcome  the  judgment  of 
the  election  oificers,  who  admit  the  vote  publicly,  in  the  face 
of  a  challenge,  and  with  the  right  to  scrutinize  the  voter, 
would  seem  to  be  exceedingly  dangerous." 


CHAP.  XIV.]  CONTESTED   ELECTIONS.  359 

§  486.  In  Newland  v.  Graham^  the  declarations  of  voters 
made  after  the  election,  of  their  having  voted  for  the  sit- 
ting member,  were  held  inadmissible,  and  were  excluded, 
although  it  was  shown  that,  by  the  statute  of  North  Caro- 
lina, where  the  election  took  place,  voters  were  not  com- 
pellable to  give  evidence  for  whom  they  voted.  The  Com- 
mittee did  not  in  their  report  state  the  ground  of  their 
decision,  but  we  may  fairly  presume  that  it  was  held  that 
an  illegal  voter  could  not  refuse  to  answer  for  whom  he  cast 
his  vote,  and  shield  himself  under  the  statute  made  to  pre- 
serve the  secrecy  of  an  honest  ballot,  and  that,  therefore, 
since  all  such  persons  can  be  compelled  to  state  for  whom 
they  voted,  they  should  be  called  as  witnesses,  and  their 
declarations  not  under  oath  should  not  be  received. 

§  487.  In  the  case  of  Bell  v.  Snyder,  the  House  of  Rep- 
resentatives of  the  43d  Congress  held  that  the  declaration 
of  a  voter  as  to  how  he  voted  or  intended  to  vote  is  com- 
petent testimony  on  the  point.^  This  was  a  case  in  which 
it  appeared  that  certain  legal  voters  tendered  their  ballots 
and  were  not  permitted  to  vote.  They  therefore  filed  with 
the  supervisor  of  the  election  their  aifidavits,  to  which  they 
attached  the  ballots  which  they  had  tendered  and  desired  to 
vote.  It  was  in  connection  with  the  proof  of  these  facts 
that  their  declarations  were  admitted  as  part  of  the  res  gestoB. 
The  case  is  therefore  not  identical  with  a  case  where  illegal 
votes  have  been  admitted,  and  the  question  is  for  whom  they 
were  cast. 

§  488.  The  chief  reason  for  the  general  adoption  of  the 
ballot  in  this  country  is,  that  it  affords  the  voter  the  means 
of  preserving  the  secrecy  of  his  vote,  thus  enabling  him  to 
vote  independently  and  freely,  without  being  subject  to  be 
overawed,  intimidated,  or  in  any  manner  controlled  by 
others,  and  protects  him  from  any  ill  will  or  persecution  on 
account  of  his  vote.  The  secret  ballot  is  justly  regarded  as 
an  important  and  valuable  safeguard  for  the  protection  of 

1 1  Bart,  5. 

2  Contested  Elec.  Cases,  1871  to  1876,  p.  251. 


360  ELECTIONS.  [chap.  XIV. 

the  voter,  and  particularly  the  humble  citizen,  against  the 
influence  which  wealth  and  station  may  be  supposed  to 
exercise.  And  it  is  for  this  reason  that  the  privacy  is  held 
not  to  be  limited  to  the  moment  of  depositing  the  ballot,  but 
is  sacredly  guarded  by  the  law  for  all  time  unless  the  voter 
himself  shall  voluntarily  divulge  it.^ 

§  489.  All  devices  by  which  the  secrecy  of  the  ballot  is 
destroyed  by  means  of  colored  paper  used  for  ballots,  or  by 
other  similar  means,  are  exceedingly  reprehensible,  and, 
whether  expressly  prohibited  by  statute  or  not,  should  be 
discountenanced  by  all  good  citizens,'^  Judge  Cooley,  in  his 
admirable  work  on  Constitutional  Limitations,  expresses  the 
opinion  that  inasmuch  as  the  voter  himself  cannot  be  com- 
pelled to  disclose  for  whom  he  voted,  it  is  but  reasonable  to 
conclude  that  "  others  who  may  accidentally,  or  by  trick  or 
artifice,  have  acquired  knowledge  on  the  subject,  should  not 
be  allowed  to  testify  to  such  knowledge,  or  to  give  any 
information  in  the  courts  upon  the  subject.  Public  policy," 
he  declares,  "  requires  that  the  veil  of  secrecy  should  be 
impenetrable,  unless  the  voter  himself  voluntarily  determines 
to  lift  it.'  His  ballot  is  absolutely  privileged,  and  to  allow 
evidence  of  its  contents,  when  he  has  not  waived  the  privi- 
lege, is  to  encourage  trickery  and  fraud,  and  would  in  effect 
establish  this  remarkable  anomaly,  that  while  the  law,  from 
motives  of  public  policy,  establishes  the  secret  ballot  with  a 
view  to  conceal  the  elector's  action,  it  at  the  same  time  en- 
courages a  system  of  espionage,  by  means  of  which  the  veil 
of  secrecy  may  be  penetrated  and  the  voter's  action  dis- 
closed to  the  public."  * 

1  [Attorney-General  v.  McQuade,  94  Mich.,  439;  Major  v.  Barker  (Ky.), 
35  S.  W.  Rep.,  543;  Tullas  v.  Lane,  45  La.,  383];  People  v.  Pease,  27  N.  Y., 
45,  81. 

2  [Where  the  Constitution  or  statute  laws  of  a  State  require  uni- 
formity of  tickets  without  distinguishing  marks  or  embellishments, 
and  tickets  are  printed  on  material  of  such  thickness  as  to  be  dis- 
tinguishable, this  would  constitute  a  violation  of  the  law.  English  v. 
Peelle,  Mob.,  167.] 

*  [Ex  parte  Arnold,  128  Mo.,  256.] 
♦Pages  506,  507, 


CHAP.  XIV.]  CONTESTED   ELECTIONS.  861 

§  490.  The  case  of  People  v.  Cicott  ^  is  cited  to  sustain 
the  views  just  expressed.  At  the  same  time  the  author  con- 
cedes that  in  legislative  bodies  it  has  been  held  that,  when  a 
voter  refuses  to  disclose  for  whom  he  voted,  evidence  is  ad- 
missible of  the  general  reputation  of  the  political  character 
of  the  voter,  and  as  to  the  party  to  which  he  belonged  at  the 
time  of  the  election,  but  the  hope  is  expressed  that  this  rule 
of  evidence  will  not  be  adopted  by  the  courts.  In  practice 
it  will  be  found  that  it  can  in  general  only  be  important  to 
prove  the  contents  of  a  ballot  deposited  in  the  box  by  a  per- 
son claiming  the  right  to  vote,  for  one  or  the  other  of  the 
following  purposes : 

1.  When  it  is  alleged  that  the  person  casting  such  ballot 
was  not  a  legal  voter,  and  for  the  purpose  of  excluding  it. 

2.  When  it  is  deemed  important  to  show  how  many  good 
votes  were  cast  for  a  particular  candidate  at  a  given  poll,  for 
the  purpose  of  impeaching  the  return  and  showing  that  such 
candidate  has  not  been  allowed  all  the  votes  cast  for  him. 

When  the  object  is  to  exclude  the  ballot  as  cast  by  a  per- 
son not  qualified  to  vote,  as  we  have  elsewhere  seen,  it  is 
necessary  to  show^rs^  that  the  ballot  was  illegal.  This  being 
done,  the  person  who  cast  it  may  be  compelled  to  answer 
as  to  its  contents,  or  if  he  cannot  be  found,  or  fails  to  re- 
member, the  contents  of  such  illegal  ballot  may  be  shown 
by  circumstances.  If  the  object  is  to  show  how  many  good 
votes  a  particular  candidate  has  received,  for  the  purpose  of 
impeaching  the  return,  it  is  to  be  presumed  that  the  voters 
who  cast  such  votes  will,  as  a  general  rule,  not  object  to  giv- 
ing testimony,  because  the  evidence  is  sought  as  a  means  of 
protecting  their  rights  and  defeating  an  alleged  fraud  by  rea- 
son of  which  their  votes  have  not  been  honestly  counted  and 
returned.  But  if  any  voter  under  these  circumstances  should 
refuse  to  waive  his  privilege  and  testify  as  to  the  contents  of 
his  ballot,  and  should  object  to  his  secret  being  divulged  by 
any  other  witness,  his  refusal  and  objection  must  prevail,  un- 
less he  has  himself,  at  the  time  of  voting,  voluntarily  made 

1 16  Mich.,  382. 


362  ELEOTION8.  [cHAP.  XIV. 

public  his  ballot,  and  its  contents,  in  which  case  such  con- 
tents may  be  proven  by  the  testimony  of  those  persons  to 
whom  they  were  voluntarily  communicated.^ 

§  491.  In  Reed  v,  Kneass  ^  it  was  insisted  by  counsel  that 
a  voter  should  not  be  permitted  to  testify  as  to  the  person 
for  whom  he  has  voted  at  an  election.  It  was  contended 
that  the  constitutional  provision  that  "all  elections  shall  be 
by  ballot "  was  not  simply  intended  as  a  security  to  the 
elector  for  the  free  and  independent  exercise  of  the  right  of 
suffrage,  but  that  from  considerations  of  public  policy  it 
should  be  held  to  prevent  the  voter,  under  any  circumstances, 
from  disclosing  before  a  judicial  or  other  tribunal  how  he 
voted.  But  this  point  was  overruled,  and  it  was  held  that 
while  the  voter  has  the  privilege  of  preserving  the  secrecy 
of  his  ballot  by  refusing  to  testify  to  its  contents,  he  is  at 
liberty  to  waive  that  privilege.  If  it  were  otherwise,  it  might 
often  be  impossible  to  bring  to  light  the  darkest  frauds.  It 
would  be  a  strange  perversion  of  the  rule  which  preserves  the 
secrecy  of  the  ballot  for  the  purpose  of  encouraging  free  and 
independent  voting,  to  make  it  serve  to  shield  the  fraud  and 
corruption  of  those  who  would,  by  tampering  with  or  chang- 
ing ballots  after  they  are  cast,  altogether  deprive  the  major- 
ity of  the  electors  of  their  choice.  In  the  case  just  cited  two 
hundred  and  thirty  witnesses  were  examined  and  testified 
that  they  had  each  voted  at  a  given  precinct  for  W.  B.  Read 
for  District  Attorney,  whereas,  according  to  the  oflBcial  re- 
turns, he  had  received  but  one  hundred  and  twenty  votes 
therein.  This  mode  of  attacking  and  impeaching  a  return 
has  been  frequently  recognized  as  proper,  and  this  kind  of 
evidence  as  competent.' 

§  492.  A  person  who  votes  without  being  qualified  is  a 
mere  intruder  and  not  entitled  to  the  privileges  which  belong 
to  legal  voters.*    But  such  a  person  will  not  be  compelled  to 

1  See,  also,  §§  488,  489. 

2  2  Pars.,  584;  S.  C,  Bright.  Elec  Cas.,  868. 

»  Raid  V.  Julian,  2  Bart.,  822;  Loyall  v.  Newton,  OL  *  H.,  522;  [Bell  v, 
Snyder,  Smith,  247]. 
<  [State  V.  Kraft,  18  Jreg.,  550.] 


CHAP.  XIV.]  OONTEBTED   ELECTIONS.  363 

testify  as  to  the  person  for  whom  he  voted,  until  it  is  clearly 
shown  that  he  voted  illegally.  So  long  as  the  question  as  to 
the  legality  of  his  vote  is  in  doubt,  he  cannot  be  compelled 
to  make  the  disclosure.^  An  illegal  voter  may,  however,  de- 
cline to  answer  for  whom  he  voted,  on  the  ground  that  his 
answer  might  criminate  himself,  but  in  such  case  the  con- 
tents of  the  ballot  may  be  shown  by  other  testimony .^ 

And  a  legal  voter  may  waive  his  privilege  and  voluntarily 
testify  as  to  the  persons  for  whom  he  has  voted.' 

§  493.  And  where  a  voter  refuses  to  disclose,  or  fails  to 
remember,  for  whom  he  voted,  it  is  competent  to  resort  to 
circumstantial  evidence,  to  raise  a  presumption  in  regard 
to  that  fact.*  And  within  this  rule  it  was  held  in  People  v. 
Pease  ^  to  be  proper  to  ask  the  voter  for  whom  he  intended 
to  vote ;  also  to  prove  that  he  was  an  active  member  of  a 
particular  political  party,  or  obtained  his  ballot  from  a  per- 
son who  was  actively  supporting  a  particular  candidate  or 
a  particular  ticket.® 

§  494.  It  is  very  clear  that  the  rule  which,  upon  grounds 
of  public  policy,  protects  the  legal  voter  against  being  com- 
pelled to  disclose  for  whom  he  voted,  does  not  protect  a  per- 
son who  has  voted  illegally  from  making  such  disclosure.  To 
give  to  that  rule  this  wide  scope  would  be  to  make  it  shield 

1  Case  of  Locust  Ward  Election,  4  Penn.  L.  J.,  349;  People  v.  Cicott, 
16  Mich.,  282;  State  v.  Hilmantel,  23  Wis.,  432;  [Pedigo  v.  Grimes,  113 
Ind.,  148]. 

2  State  V.  Olin,  23  Wis.,  309. 

3  Reed  v.  Kneass,  2  Pars.  (Phila.),  584:  S.  C,  Bright.  Elec.  Caa,  366. 

*  People  V.  Pease,  27  N.  Y.,  45.  And  see  Cushing's  Am.  Pari.  Law, 
§§  199,  210;  [Boyer  v.  Teague,  106  N.  C,  576.  In  the  absence  of  direct 
proof,  evidence  showing  to  what  political  party  a  voter  belonged,  whose 
election  he  advocated,  whose  friends  maintained  his  right  to  vote,  and 
kindred  testimony,  has  been  held  admissible.  What  the  voter  said  at 
the  time  of  voting  is  admissible  as  a  part  of  the  res  gestae.  Smith  v. 
Jackson,  Row.,  9;  Cook  v.  Cutts,  2  Ells.,  243]. 

*  Supra. 

*  Notwithstanding  the  high  authority  of  People  v.  Pease,  it  is  apparent 
that  the  distinction  between  asking  a  voter  for  whom  he  voted  and  ask- 
ing him  for  whom  he  intended  to  vote  is  very  narrow,  and  probably  not 
substantial    [Bisbee  v.  Finley,  2  Ells.,  172.] 


364  BLBonoNs.  ■  [chap.  xrr. 

alike  the  right  and  the  wrong,  the  honest  and  the  dishonest. 
It  was  intended  to  protect  the  inviolable  secrecy  of  an  honest 
ballot,  and  thus  the  purity  of  the  ballot-box.  It  was  not  in- 
tended to  be  used  in  aid  of  the  schemes  of  corrupt  men  to 
defeat  the  will  of  the  people.  It  follows  that,  having  proven 
that  A.  voted  at  the  election  in  question,  and  that  he  was 
not  a  legal  voter,  he  may  be  required  to  testify  as  to  the  per- 
son or  persons  for  whom  he  voted.^ 

§  495.  If  an  illegal  voter,  when  called  as  a  witness, 
swears  that  he  does  not  know  for  whom  he  voted,  and  it  is 
impossible  to  determine  from  any  evidence  in  the  case  for 
whom  he  voted,  his  vote  is  not  to  be  taken  from  the  major- 
ity.'^ But  it  does  not  follow  that  such  illegal  votes  must 
necessarily  be  counted  in  making  up  the  true  result  because 
it  cannot  be  ascertained  for  whom  they  were  cast.  In 
purging  the  polls  of  illegal  votes,  the  general  rule  is  that, 
unless  it  be  shown  for  which  candidate  they  were  cast,  they 
are  to  be  deducted  from  the  whole  vote  of  the  election  di^asion, 
and  not  from  the  candidate  having  the  largest  number.'  Of 
course,  in  the  application  of  this  rule  such  illegal  votes  would 
be  deducted  proportionately  from  both  candidates,  according 
to  the  entire  vote  returned  for  each.*    Thus,  we  will  suppose 

iMcDaniel's  Case,  3  Pa,  Law  Journal,  310;  S.  C,  Bright.  Elec.  Cas., 
248.  [For  a  general  discussion  of  this  question,  see  note  to  People  v. 
Pease,  84  Am.  Dec,  268.] 

^McDaniel's  Case,  supra. 

•Shepherd  v.  Gibbons,  2  Brewst,  128;  MoDaniel's  Case,  8  Pa.  L.  J., 
310;  Cushing's  Elec  Cas.,  58a 

<  [Heyfron  v.  Mahoney,  9  Mont,  497;  Attorney-General  v.  May,  99  Mich., 
588;  Russell  v.  McDowell,  83  Cal,  70;  Finley  v.  Bisbee,  1  Ells.,  74.  Where 
ballots  are  found  in  excess  of  the  names  on  the  poll  lists,  and  the  in- 
spectors fail  to  draw  them  out  as  required  by  the  statute  of  Michigan, 
they  should  on  the  trial  of  the  cause  be  so  apportioned  that  each  can- 
didate shall  have  deducted  a  share  of  them  proportioned  according  to 
the  whole  number  of  votes  in  his  favor;  the  probability  being  that  the 
legal  and  illegal  votes  have  been  cast  ratably  for  the  several  candidates. 
People  V.  Cicott,  16  Mich.,  283;  Campbell  v.  Morey,  Mob.,  215.  See,  also, 
Hurd  V.  Romeis,  Mob.,  429.  In  the  case  of  Little  v.  State,  75  Tex.,  616, 
the  Supreme  Court  of  Texas  sustained  the  ruling  of  the  trial  court  in 
refusing  to  give  this  instruction:    "Before  you  can  reject  an  illegal 


CHAP.  XIV  ]  CONTESTED   ELECTIONS.  365 

that  John  Doe  and  Kichard  Eoe  are  competing  candidates 
for  an  office,  and  that  the  official  canvass  shows 

For  John  Doe,  625  votes. 

For  Kichard  Koe,      575  votes. 

Total  vote,               1,200 
Majority  for  Doe, 50 

But  there  is  proof  that  one  hundred  and  twenty  illegal 
votes  were  cast,  and  no  proof  as  to  the  person  for  whom 
they  were  cast.  The  illegal  vote  is  ten  per  cent,  of  the  re- 
turned vote,  and  hence  each  candidate  loses  ten  per  cent,  of 
the  vote  certified  to  him.  By  this  rule  John  Doe  will  lose 
sixty-two  and  one-half  votes,  and  Kichard  Koe  fifty-seven 
and  one-half  votes,  and  the  result  as  thus  reached  is  as  fol- 
lows: 

Doe's  certified  vote,         625 

Deduct  illegal  votes,  62J 

Total  vote,         662^ 
Koe's  certified  vote,  575 
Deduct  illegal  votes,    67i^ 


Total  vote,                 517^ 
Majority  for  Doe, 45 

§  496.  This  is  probably  the  safest  rule  that  can  be  adopted 
in  a  court  of  justice,  where  there  is  no  power  to  order  a  new 
election,  and  where  great  injury  would  result  from  declar- 
ing the  office  vacant ;  but  it  is  manifest  that  it  may  some- 
times work  a  great  hardship,  inasmuch  as  the  truth  might 
be,  if  it  could  be  shown,  that  all  the  illegal  votes  were  on 
one  side,  while  it  is  scarcely  to  be  presumed  that  they  would 
ever  be  divided  between  the  candidates  in  exact  proportion 
to  their  whole  vote.     But  the  rule  which,  in  the  absence  of 

vote,  you  must  know  for  whom  it  was  polled.  It  cannot  be  taken  from 
the  majority  candidate,  unless  proven  to  have  been  polled  for  him." 
The  ruling  was  sustained,  however,  on  the  one  ground  that  there  was 
sufficient  evidence  before  the  jury  to  authorize  them  to  find  for  either 
party  without  knowing  for  whom  any  particular  vote  was  cast.] 


366  ELECTIONS.  [chap.  XTV. 

proof  as  to  how  illegal  votes  were  cast,  would  deduct  them 
all  from  the  majority  candidate,  is  much  more  unreasonable 
and  dangerous.  Of  the  two  evils  the  least  should  be  chosen. 
We  see  here,  however,  how  important  it  is  that  it  should,  if 
possible,  be  made  to  appear,  either  by  direct  or  circumstan- 
tial evidence,  for  whom  each  illegal  vote  was  cast. 

In  a  legislative  body  having  power  to  order  a  new  elec- 
tion, and  in  any  other  tribunal  having  the  same  power,  it 
will  doubtless,  generally,  be  regarded  as  safer  and  more  con- 
ducive to  the  ends  of  justice  to  order  such  new  election 
than  to  reach  a  result  by  the  application  of  the  rule  above 
stated.^ 

§  497.  It  would  seem,  therefore,  that  in  a  case  where  the 
number  of  bad  votes  proven  is  suflBcient  to  affect  the  result, 
and  in  the  absence  of  any  evidence  to  enable  the  court  to 
determine  for  whom  they  were  cast,  the  court  must  decide 
upon  one  of  the  three  following  alternatives,  viz. : 

1.  Declare  the  election  void. 

2.  Divide  the  illegal  votes  between  the  candidates  in  pro- 
portion to  the  whole  vote  of  each. 

3.  Deduct  the  illegal  vote  from  the  candidate  having  the 
highest  vote. 

And  it  is  clear,  also,  that  where  in  such  a  case  no  great 
public  inconvenience  would  result  from  declaring  the  elec- 
tion void,  and  seeking  a  decision  by  an  appeal  to  the  elect- 
ors, that  course  should  be  adopted.  And  in  a  case  where  it 
is  essential  that  one  or  the  other  party  to  the  contest  be 
confirmed  in  the  office  to  prevent  such  public  inconvenience, 
then  the  second  alternative  above  named  should  be  resorted 
to,  but  the  third  should  in  no  event  be  adopted.  Let  it  be 
understood  that  we  are  here  referring  to  a  case  where  it  is 
found  to  be  impossible  by  the  use  of  due  diligence  to  show 
for  whom  the  illegal  votes  were  cast.  If  in  any  given  case 
it  be  shown  that  the  proof  was  within  the  reach  of  the  party 
whose  duty  it  was  to  produce  it,  and  that  he  neglected 
to  produce  it,  then  he  may  well  be  held  answerable  for  his 

1  [Finley  v.  Bisbee,  1  Ells.,  74] 


CHAP,  XTV.]  CONTESTED   ELECTIONS.  867 

own  neglect ;  and  because  it  was  his  duty  to  show  for  whom 
the  illegal  votes  were  cast,  and  because  he  might,  by  the  use 
of  reasonable  diligence,  have  made  this  showing,  it  may  very 
properly  be  said  that  he  should  himself  suffer  the  loss  oc- 
casioned by  deducting  them  from  his  own  vote.^ 

This  is  the  principle  involved  in  the  case  of  Duffey^  where 
the  court  laid  down  the  following  rules : 

1.  It  is  the  right  of  petitioners  contesting  an  election, 
and  also  the  right  of  the  respondent,  to  examine  the  election 
papers  on  file  in  the  proper  office,  and  if  it  be  apparent  from 
them  that  persons  have  voted  in  any  district  whose  names 
were  not  on  the  "  registry  list,"  without  being  vouched  ac- 
cording to  law,  then  prima  facie  all  such  votes  are  illegal. 

2.  When  a  contest  has  been  inaugurated  and  complaint 
made  and  notice  given  that  such  votes  have  been  received, 
the  burden  of  proof  falls  upon  the  candidate  advantaged  by 
the  general  count  in  such  district  to  show  either  that  the 
persons  so  voting  possessed  severally  every  qualification,  or 
if  this  be  not  so,  that  they  voted  for  his  opponent;  he  must 
lift  the  curse  which  the  law  imposes  upon  such  ballots ;  other- 
wise it  will  be  presumed  that  they  were  polled  and  counted 
for  him ;  and  thereupon  the  poll  will  be  purged  by  striking 
the  whole  number  of  such  votes  from  his  count. 

To  the  first  of  these  propositions  no  exception  can  be  taken, 
and  we  apprehend  that  the  same  ruling  will  be  made  in  all 
our  States  which  have  registry  laws  requiring  persons  not 
registered  to  file  with  the  judges  of  the  election  affidavits  of 
themselves  or  others  in  proof  of  their  right  to  vote.  The 
second  proposition  can  be  maintained,  if  at  all,  only  upon  the 
ground  that  it  is  in  the  case  stated  practicable  to  show  for 
whom  the  illegal  votes  were  cast.  It  is  said  in  the  course  of 
the  opinion :  "  The  number  of  these  illegal  votes  was  easy  of 
ascertainment;  the  names  of  the  persons  polling  them  had 
but  to  be  read  to  be  known."  Upon  the  theory  that  the 
illegal  voter  can  be  called  as  a  witness  and  compelled  to  di&- 

1  [Piatt  V.  Goode,  Smith,  650.] 
UBrewst.,  531. 


368  ELECTIONS.  [chap.  XIV. 

close  for  whom  he  voted  (which  is  beyond  doubt  the  true 
theory),  it  would  be  easy  in  such  a  case  as  the  one  stated  to 
call  the  illegal  voters  and  require  them  to  testify  to  the  fact. 
It  still  remains,  however,  a  question  whether  they  shall  be 
called  at  the  instance  of  the  contestant  upon  the  theory  that 
the  burden  of  proof  is  upon  him  to  make  out  his  case,  or  at 
the  instance  of  the  respondent  upon  the  theory  that  because 
he  is  advantaged  by  the  general  result  he  must  show  that  all 
illegal  votes  were  cast  for  his  opponent  or  suffer  them  to  be 
deducted  from  his  own  vote.  The  court  adopted  the  latter 
theory,  but  we  think  the  safer  rule  would  be  for  the  contestant 
to  show  not  only  that  a  certain  number  of  illegal  votes  were 
polled,  but  also  to  show,  if  he  can,  that  they  were  cast  for  his 
opponent.  It  is  not  intended  by  this  to  assert  that  the  rule 
above  quoted  from  Duffey's  case  is  positively  erroneous,  but 
only  to  intimate  a  doubt,  and  to  express  the  opinion  that  the 
ordinary  principle  which  requires  the  party  holding  the 
affirmative  to  prove  the  facts,  and  all  the  facts,  necessary  to 
make  out  his  case,  is  the  better  rule,  and  that  it  will  in  all 
cases  be  safer  to  follow  it.  Of  course,  if  by  the  use  of  due 
diligence  it  be  impossible  to  find  the  illegal  voters,  or  if  upon 
being  found  it  shall  be  impossible  to  ascertain  from  their 
testimony  how  they  voted,  the  contestant  should  not  suffer. 
This  would  present  the  question,  what  is  to  be  done  with 
illegal  votes  when  it  is  found  to  be  impossible  by  due  dili- 
gence to  show  for  whom  they  were  cast  —  a  question  which 
is  discussed  in  the  preceding  sections. 

§  498.  Where  the  statute  makes  it  a  misdemeanor  for  any 
officer  of  elections  to  place  any  number  or  mark  upon  the 
ballot  of  a  voter,  but  does  not  declare  that  ballots  so  marked 
or  numbered  by  such  officer  shall  be  rejected,  the  true 
rule  is  to  receive  and  count  them.  To  reject  such  ballots 
would  be  to  establish  a  rule  under  which  an  officer  of  elec- 
tion could  destroy  the  effect  of  a  ballot  cast  in  good  faith 
by  a  legal  voter,  by  placing  a  number  or  mark  upon  it.  For 
a  full  consideration  and  discussion  of  this  point,  see  the  cases 


CHAP.  XIT.]  CONTESTED   ELECTIONS.  369 

of  McKenzie  v.  Braxton^  and  Giddings  v.  Clarh^  in  the  4:2d 
Congress.     The  report  in  the  latter  case  says : 

"  By  reference  to  the  statute  here  referred  to  it  will  be 
seen  that  it  is  made  a  misdemeanor  for  any  judge  of  election 
io  place  any  number  or  mark  upon  the  ticket  of  any  voter; 
but  it  is  not  declared  that  the  vote  of  a  legally  qualified  voter 
shall  be  rejected  because  his  ballot  is  marked  by  the  judges. 
We  should  not  be  inclined  to  put  a  construction  upon  this 
statute  which  would  enable  an  officer  of  election  to  destroy 
the  effect  of  a  ballot  cast  in  good  faith  by  a  legal  voter  by 
placing  a  number  or  mark  upon  it.  A  ballot  may  be  thus 
marked  or  numbered  without  the  knowledge  or  consent  of 
the  voter,  and  it  would  be  manifestly  unjust  that  he  should 
in  this  way  be  deprived  of  his  vote." 

"  We  think  it  plain  that,  inasmuch  as  the  statute  affixes  a 
penalty  for  marking  a  ballot,  and  does  not  expressly  declare 
that  a  marked  ballot  shall  be  thrown  out.  the  board  erred  in 
rejecting  the  vote  of  this  county  upon  this  ground." 

§  499.  In  the  report  of  the  committee  of  elections  in 
Gooding  v.  Wilson,^  several  important  rules  of  evidence  ap- 
plicable to  cases  of  contested  elections  were  laid  down,  as 
follows : 

"  Evidence  which  might  have  been  sufficient  to  put  the 
voter  to  his  explanation,  if  challenged  at  the  polls,  is  not 
deemed  sufficient  to  prove  a  vote  illegal  after  it  has  been 
admitted.  Kor  has  the  mere  statement  by  a  witness  that  a 
voter  was  or  w^as  not  a  resident,  without  giving  facts  to  jus- 
tify his  opinion,  been  considered  sufficient  to  throw  out  such 
a  vote.  The  testimony  shows  a  number  of  instances  where 
a  witness  would  state  positively  the  residence  or  non-resi- 
dence of  a  voter  on  some  theory  of  his  own,  or  some  mistake 
of  fact,  when  other  testimony  would  show  with  entire  clear- 
ness that  the  vote  w^as  legal.  After  a  vote  has  been  admitted, 
something  more  is  required  to  prove  it  illegal  than  to  throw 

1  [Smith,  19.] 

2  [Smith,  91.] 

3  [Smith,  79.] 

24 


3T0  ELECTIONS.  [chap.  XIV. 

doubt  upon  it.  There  ought  to  be  proof  which,  weighed  by 
the  ordinary  rules  of  evidence,  satisfies  and  convinces  the 
mind  that  a  mistake  has  been  made,  and  which  the  House 
can  rest  upon  as  a  safe  precedent  for  like  cases." 

§  500.  Of  course  some  weight  is  to  be  given  to  the  decis- 
ion of  the  judges  of  the  election,  whose  province  it  is  in  the 
first  instance  to  admit  or  exclude  votes.  Their  action  is  to 
be  presumed  correct  until  it  is  shown  to  have  been  erroneous.^ 
The  other  rule  stated  above  is  equally  sound.  Whether  a 
person  is,  or  is  not,  a  resident  of  a  particular  place  is  often 
a  question  of  law  as  well  as  of  fact.  Unless  the  facts  are 
stated,  the  question,  in  so  far  as  it  is  a  question  of  law,  can- 
not be  determined,  and  that  question  is  not  for  the  witness 
to  decide,  but  for  the  court. 

§  601.  Where  the  charter  of  a  municipal  corporation 
makes  the  city  council  judges  of  election,  but  does  not  de- 
clare their  decision  to  be  final  or  conclusive,  the  canvass 
of  the  vote  and  the  declaration  of  the  result  made  by  the 
council  \%  prima  fade  evidence  only  of  the  right  of  the  per- 
son declared  elected,  and  the  right  may,  in  such  a  case,  be 
contested  by  proper  legal  proceedings.-  In  such  a  contest 
the  record  of  the  count  made  by  the  city  council  is  compe- 
tent, but  not  conclusive  evidence  for  the  defendant,  and  may 
be  proved  by  the  original  record  kept  by  the  council,  or  a 
certified  copy.' 

§  503.  It  is  undoubtedly  the  policy  of  the  law  not  to 
throw  too  many  obstacles  in  the  way  of  investigating  the 
correctness  and  hona  fides  of  election  returns.  On  this  point 
the  Court  in  Reed  v.  Kneass*  very  justly  observe: 

1  [State  V.  Calvert,  98  N.  C,  580;  Atkinson  v.  Pendleton,  Row.,  45.] 

2  [Rigsbee  v.  Durham,  98  N.  C,  81.  It  is  held  in  Michigan  that  where 
the  charter  of  a  city  provides  that  the  common  council  of  the  city 
shall  be  the  judge  of  the  election  and  qualification  of  its  own  members, 
and  shall  have  power  to  determine  contested  elections,  the  decision  of 
the  council  upon  these  questions  is  conclusive  and  final.  People  v.  Har- 
shaw,  60  Mich.,  200.] 

» Echols  V.  State,  56  Ala.,  18L 
*  Supra, 


OHAP.  XrV.]  CONTESTED    ELECTIONS.  371 

"  The  true  policy,  to  maintain  and  perpetuate  the  vote  by 
ballot,  is  found  in  jealously  guarding  its  purity,  in  placing 
no  fine-drawn  metaphysical  obstructions  in  the  way  of  test- 
ing election  returns  charged  as  false  and  fraudulent,  and  in 
insuring  to  the  people  by  a  jealous,  vigilant  and  determined 
investigation  of  election  frauds,  that  there  is  a  saving  spirit 
in  the  public  tribunals  charged  with  such  in  vestigations,  ready 
to  do  them  justice  if  their  suffrages  have  been  tampered 
with  b}''  fraud,  or  misapprehended  through  error." 

It  is  in  the  spirit  of  this  rule  that  questions  respecting  evi- 
dence in  contested  election  cases  should  be  solved. 

§  503.  The  returns  and  other  election  papers,  though  con- 
clusive upon  the  canvassers,  may  be  impeached  upon  a  quo 
warranto,  or  other  form  of  contested  election.  The  very 
question  to  be  determined  in  such  a  contest  is  frequently  the 
truthfulness  and  reliability  of  the  returns,  poll  books,  etc. ; 
and  the  duty  of  the  tribunal  trying  the  case  is  to  ascertain, 
not  who  was  returned  as  elected,  but  who  was  in  fact  elected.* 
And  in  accordance  with  this  rule  it  was  decided  in  Howard 
v.  Shields'^  that  parol  evidence  is  admissible  not  only  to  im- 
peach but  also  to  correct  omissions  in  the  poll  books  and 
tally  sheets,  and  that  these  documents  when  so  corrected 
are  sufficient  ^r^way^ae  evidence  of  the  result  of  the  elec- 
tion.' I:)  that  case  the  judges  and  clerks  of  the  election  had 
omitted  to  sign  the  poll  books  and  tally  papers  at  the  proper 
place,  and  had  also  omitted  to  fill  the  blanks  in  the  caption, 
or  to  state  the  aggregate  number  of  the  voters,  and  parol 
evidence  was  held  to  be  admissible  to  correct  these  errors. 

§  504.  In  the  case  last  named  it  was  also  held  that  the 
tally  sheet  kept  by  the  officers  of  the  election  is  competent 
evidence  in  an  election  contest  to  show  the  true  state  of  the 
vote.*    It  is  good  until  impeached,  and  affords  prima  facie 

1  People  V.  Vail,  20  Wend.,  12;  Commonwealth  v.  Commissioners,  5 
Rawle,  77. 
2 16  Ohio  St.,  184. 
J  [Craig  V.  Shelley,  Mob.,  373.] 
<  But  the  rule  stated  in  the  text  presupposes  that  tally  sheets  are  re- 


372  ELECTIONS.  [chap.  XIV. 

evidence  of  the  number  of  votes  cast  for  each  candidate.^ 
The  ballots  themselves  are,  however  (when  fully  identified), 
better  evidence  of  the  number  of  votes  cast  and  for  whom 
cast  than  the  tally  lists  made  from  them  by  the  officers  of 
election.^  But  unless  the  law  has  provided  means  for  pre- 
serving and  identifying  the  very  ballots  cast,  and  unless  the 
law  in  that  respect  has  been  strictly  pursued,  the  ballots  may 
not  afford  evidence  as  reliable  as  the  other  election  papers. 
§  505.  A  statute  of  Ohio  required  tally  sheets  to  be  kept, 
and  the  board  of  canvassing  officers  were  required  to  certify 
and  return  the  vote  "  as  shown  by  the  tally  sheets."  In  Fol- 
lett  v.  Delano^  which  arose  under  this  statute,  it  was  held 
that  although  the  return  might  be  so  defective  as  to  be  unre- 
liable as  evidence,  yet,  if  it  did  not  appear  affirmatively  that 
the  tally  sheets  were  also  defective  and  unrefiable,  it  must 
be  presumed  that  they  were  correct.  And  it  was  therefore 
the  duty  of  the  contestant,  in  order  to  make  out  his  case,  to 
put  in  evidence  both  the  returns  and  tally  papers,  and  show 
that  neither  afforded  satisfactory  evidence  of  the  true  result.^ 
This  was  a  correct  ruling  under  the  Ohio  statute,  but  it  must 
not  be  assumed  that  it  is  authority  for  any  case  not  arising 
under  a  similar  law.  It  was  the  duty  of  the  contestant  in 
that  case  to  attack  the  tally  papers  as  well  as  the  return,  be- 
cause the  tally  papers  were  made  by  statute  substantially  a 
part  of  the  return.  They  were  papers  to  accompany  the  re- 
turn. They  were  to  be  certified  and  sent  in  with  the  return, 
and  they  were  required  to  show  the  time  and  place  of  hold- 
ing the  election ;  the  persons  by  whom  it  was  conducted ;  the 
number  of  votes  cast  and  for  whom.  It  might  very  well 
happen  that  these  papers  would  supply  informalities  and  de- 
fects in  the  returns  themselves,  and  as  they  were  not  produced 

quired  by  law  to  be  kept.  Where  they  are  not  required  by  law  to  be 
kept  by  the  managers  of  the  election,  if  such  are  nevertheless  kept,  they 
are  not  admissible.    Echols  v.  State,  56  Ala.,  131. 

1  And  see,  also.  Powers  v.  Reed,  19  Ohio  St,  189;  [Spencer  v,  Morey,. 
Smith,  437J. 

2  People  V.  Holden,  28  CaL,  12a 
»2Bart,  lia 


CHAP.  XIV.]  CONTESTED   ELECTIONS.  37-3 

in  evidence,  it  was  properly  held  that  they  were  presumed  to 
be  correct  and  formal,  and  being  so,  that  they  did  afford  suf- 
ficient proof  of  the  result  in  that  case.  But  ordinarily,  where 
the  return  is  attacked  and  set  aside,  it  is  not  necessary  for 
the  contestant  to  go  further  and  set  aside  all  the  other  elec- 
tion papers.  The  general  rule  is  that  when  the  return  is  set 
aside  both  parties  must  prove  their  votes  by  other  evidence. 
The  exception  to  this  rule  is  where  there  are  papers  to  ac- 
company the  returns,  which  are  in  fact  a  part  of  it,  and 
which  would,  if  formal,  cure  the  defect  in  the  return.  In 
such  a  case  these  accompanying  papers  must  be  produced. 
These  suggestions  of  course  apply  only  to  cases  where  re- 
turns are  attacked  on  the  ground  of  informality.  Where 
the  attack  is  made  upon  the  ground  of  fraud  or  the  like,  the 
court  or  tribunal  having  jurisdiction  will  proceed  with  the 
inquiry,  without  reference  to  what  appears  upon  the  face  of 
the  returns. 

§  506.  The  rule  which  admits  in  evidence,  on  the  trial  of 
a  case  of  contested  election,  the  original  tally  sheet,  duly  cer- 
tified by  the  officer  of  election  as  prima  facie  evidence  of  the 
election  of  the  person  for  whom  it  shows  a  majority  of  the 
ballots  to  have  been  cast,  was  re-affirmed  in  Ohio  in  State  v. 
Donnewirth}  "We  have  already  called  attention  to  the  pro- 
visions of  the  statute  of  Ohio  in  relation  to  the  tally  sheets 
to  be  kept  by  the  officers  of  the  election,  duly  certified  and 
returned.  And  it  may  be  observed  here  that  the  admissibil- 
ity and  value  of  the  election  papers  depends  largely  upon  the 
statutes  governing  the  election  in  question.^  But  generally, 
all  papers  required  by  law  to  be  kept  in  connection  with  the 
conduct  of  an  election  may  be  received  in  evidence  upon 
being  properly  identified. 

§  507.  While  the  poll  books  kept  by  the  proper  officers 
a,VQ  prima  facie  evidence  of  the  number  of  votes  cast  and  of 

121  Ohio,  216. 

2  [Under  the  laws  of  Iowa  the  returns  made  by  the  county  auditor, 
to  be  canvassed  by  the  county  commissioners,  are  higher  evidence  than 
the  tally  sheets.    Frederick  v.  Wilson,  Mob.,  401.] 


374  ELECTIONS.  [chap.  XIV. 

the  result  of  the  election,  they  may,  as  ^ve  have  elsewhere 
seen,  be  impeached  for  fraud  or  mistake.  Thus,  it  was  held 
in  Kansas  that  when  the  judges  and  clerks  of  an  election  in- 
tersperse fictitious  names  in  the  list  of  voters  on  the  poll 
books,  and  deposit  spurious  ballots  in  the  ballot-box,  the  poll 
books  and  returns  made  by  such  officers  are  worthless  as 
evidence,  and  must  be  altogether  rejected.  In  such  a  case 
there  must  be  evidence  aliunde  showing  the  number  of  hon- 
est votes  cast,  and  for  whom  cast,  or  the  whole  vote  must 
be  thrown  out.^ 

§  508.  In  Ghrisman  v.  Anderson  ^  it  was  held  to  be  the 
duty  of  the  House  of  Kepresentatives  in  the  investigation  of 
an  election  contest  to  go  behind  all  certificates  for  the  pur- 
pose of  correcting  mistakes  brought  to  its  notice.  In  the 
same  case,  however,  it  was  held  that  a  return  not  signed  or 
certified  by  any  of  the  officers  of  the  election  was  not  ad- 
missible, and  the  same  point  was  held  in  Barnes  v.  Adams? 
It  is  the  duty  of  the  party  seeking  to  avail  himself  of  a  vote 
which  is  not  legally  certified  or  returned,  to  make  the  nec- 
essary proof  to  supply  the  place  of  the  usual  formal  certifi- 
cate and  return,  and,  if  he  fails  to  do  so,  such  vote  cannot  of 
course  be  received. 

§  509.  It  has  been  held  that,  for  the  purpose  of  showing 
that  a  person  voted,  the  poU  list  is  admissible  in  evidence, 
though  not  signed  by  the  inspectors  or  clerks,  having  no 
heading  to  denote  its  character,  and  never  having  been  filed 
in  the  clerk's  office.*  But  it  would,  of  course,  be  necessary 
to  prove  by  evidence  aliunde  that  such  a  paper  was  the  poll 
list  which  was  actually  kept  by  the  officers  of  the  election, 
since  it  would  not  prove  itself. 

§  510.  Where  the  statute  required  that  the  return  of  the 
vote  of  each  town  should  consist  of  a  copy  of  the  town  rec- 
ord, signed  by  the  selectmen  and  attested  by  the  clerk,  it  was 

1  Russell  V.  The  State,  11  Kan.,  308;  State  v.  Commissioners,  85  Id.,  640. 

2 1  Bart,  828. 

3  3  Bart.,  760. 

*  People  V.  Pease,  27  N.  Y.,  45. 


CHA;'.  AIV.]  CONTESTED   ELECTIONS.  375 

held  that  a  certificate  which  did  not  on  its  face  purport  to  be 
a  copy  of  the  town  record,  and  which  was  attested  by  James 
N.  Tilton,  without  anything  to  show  that  he  was  town  clerk, 
was  void,  and  could  not  be  received  by  the  canvassing 
board.^  And  of  course  if  the  proper  officers  omit  altogether 
to  sign  a  return,  though  it  may  be  otherwise  formal,  it  is 
void  and  proves  nothing.'^ 

§  511.  While  a  mere  irregularity  which  does  not  affect 
the  result  will  not  vitiate  the  return,  yet  where  the  provis- 
ions of  the  election  law  have  been  entirely  disregarded  by 
the  officers,  and  their  conduct  has  been  such  as  to  render 
their  returns  utterly  unworthy  of  credit,  the  return  must  be 
rejected.  In  such  a  case  the  returns  prove  nothing.  But  it 
does  not  follow  that  legal  votes  cast  at  such  poll  must  be 
lost.  They  may  be  proven  by  secondary  evidence  (the  re- 
turn being,  until  impeached,  the  primary  evidence),  and 
when  thus  proven  may  be  counted.' 

§  512.  A  statute  of  New  York  directed  that  one  of  the 
inspectors  of  election  who  shall  actually  preside  at  such  elec- 
tion, to  be  appointed  by  the  major  part  of  the  inspectors, 
shall  in  person  deliver  to  the  clerk  a  copy  of  the  statement 
of  votes.  It  was  held  that  the  appointment  of  the  inspector 
to  deliver  the  statement  to  the  clerk  need  not  necessarily  be  in 
writing.  An  appointment  by  writing,  in  such  a  case,  is  to  be 
preferred,  but  is  not  indispensable,  since  the  statute  is  silent 

1  Luce  V.  Mayhew,  13  Gray  (Mass.),  83. 

2  Barnes  v.  Adams,  2  Bart,  760,  771.  [Where  the  law  required  the 
preservation  of  the  ballots  and  tally  lists  until  the  next  term  of  the 
Criminal  or  District  court,  as  the  case  might  be;  and  it  was  shown 
that  neither  the  ballot-box  returns  nor  other  papers  pertaining  to  the 
election  had  been  filed  with  the  clerk  of  the  court,  except  that  a  tally 
sheet  had  been  handed  to  him  by  one  of  the  commissioners  of  the  elec- 
tion, and  was  afterwards  taken  away,  the  House  of  Representatives  re- 
fused to  receive  the  tally  sheet  as  a  valid  return.  Spencer  v.  Morey, 
Smith,  437.] 

'Littlefleld  v.  Green,  1  Chic.  Leg.  News,  230;  Bright.  Elec.  Cas.,  493; 
McKenzie  v.  Braxton,  42d  Congress  [Smith,  19];  Giddings  v.  Clark, 
Id.,  91;  [Smith  r?.  Shelley,  2  Ells.,  18;  Lowe  u  Wheeler,  2  Ells.,  61;  Finley 
V.  Walls,  Smith,  367]. 


376  ELECTIONS.  [chap.  xrv. 

as  to  the  mode  of  appointment,  and  it  was  therefore  error  to 
exclude  a  statement  of  the  vote  at  a  given  precinct  because 
the  inspector  presenting  it  did  not  produce  written  evidence 
of  his  appointment  to  discharge  that  duty.^ 

§  513.  On  the  trial  of  a  contested  election  case  in  the 
lower  House  of  Congress,  if  the  final  return  is  informal  or 
insufficient,  it  is  proper  that  the  committee  or  the  House 
should  send  for  and  examine  the  county  or  primary  returns, 
and  from  them  make  an  estimate  of  the  votes,  as  the  judges 
themselves  might  have  done.^  It  is  equally  true  that  the 
House  in  such  a  case  may  go  behind  all  returns,  whether 
primary  or  final,  and  resort  to  any  competent  evidence,  in 
order  to  ascertain  the  true  state  of  the  vote.' 

§  514.  It  was  held  by  the  majority  of  the  committee  in 
the  House  of  Representatives,  in  Koontz  v.  Coffroth*'  and 
also  in  Fuller  v.  Dawson,^  that  returns  were  void  and  should 
be  rejected  if  the  certificates  of  the  oaths  of  the  election 
officers  were  wanting.  It  must  now,  however,  be  regarded  as 
settled,  that  if  the  returns  are  otherwise  regular  they  are  not 
to  be  rejected  because  it  does  not  appear  that  the  officers 
were  sworn.  If  the  contrary  does  not  appear  it  will  be  pre- 
sumed that  they  were  sworn,  as  the  law  directs,  and  even  if 
it  be  shown  that  they  were  not  sworn,  their  acts  are  not  void 
for  that  cause  alone.® 

§  515.  It  is  impossible  to  state  more  definitely  than  we 
have  done,  the  general  rule  which  should  govern  in  deter- 
mining whether  a  return  should  be  set  aside,  and  the  parties 
on  either  side  be  required  to  prove  their  actual  vote  by  other 
evidence.  The  rule  is  that  the  return  must  stand  until  im- 
peached^ i.  e.,  until  shown  to  be  worthless  as  evidence, —  so 
worthless  that  the  truth  cannot  be  deduced  from  itJ    In 

1  The  People  v.  Van  Slyck,  4  Cowen,  297. 

2  Case  of  David  Bard,  of  Pennsylvania,  CL  &  H.,  p.  116. 

'  The  same  point  veas  decided  in  the  same  way  in  Chapman  v.  Fergu- 
son, 1  Bart.,  267. 
«  2  Bart.,  25. 
8  Id.,  126. 

«  Barnes  v.  Adams,  2  Bart.,  760,  and  cases  cited. 
7  [Lloyd  V.  Sullivan,  9  Mont,  577;  McDuffle  v.  Davidson,  Mob.,  577.] 


CHAP.  XIV.]  CONTESTED   ELECTIONS.  377 

practice  it  will  be  found  necessary  to  apply  this  rule  to  an 
infinite  variety  of  facts  and  circumstances.  The  following 
are  examples  of  its  application :  Where  it  was  clearly  shown 
that  the  contestant  received  one  hundred  and  seventy  votes, 
and  the  return  only  gave  him  one  hundred  and  forty-three 
votes,  and  there  was  other  evidence  tending  to  show  actual 
tampering  with  the  ballot-box,  the  return  was  set  aside.^ 

§  516.  In  the  same  case,  the  testimony  concerning  another 
precinct  consisted  wholly  in  proof  of  a  discrepancy  between 
the  number  of  votes  actually  cast  for  contestant,  as  shown 
by  the  testimony  of  voters,  and  the  number  returned  for 
him.  The  difference  was  twelve  votes,  and  in  the  absence 
of  any  proof  of  fraud  the  return  was  not  rejected,  but  was 
corrected  and  allowed  to  stand.  In  Reed  v.  Julian^  the 
discrepancy  between  the  vote  proven,  as  cast  for  the  sitting 
member,  and  the  vote  returned  for  him,  being  very  consider- 
able, and  there  being  other  proof  tending  to  show  fraud,  the 
return  was  set  aside. 

§  517.  Where  the  jplace  of  voting  in  an  election  precinct 
in  the  city  of  New  York  was  not  designated  or  published 
until  the  day  before  the  election,  so  that  many  voters  were 
not  advised  of  the  place,  and  where  the  inspectors  were  in 
violation  of  law  appointed  from  non-residents  of  the  precinct, 
and  where  the  board  did  not  meet  at  the  place  designated  by 
law,  but  selected  their  own  place  of  meeting,  giving  no  no- 
tice to  electors  where  they  might  be  heard,  and  where  the 
election  was  not  held  at  the  place  designated,  but  "  some- 
where near  "  it,  the  people  having  great  difficulty  in  finding 
the  place,  and  where  under  these  circumstances  the  vote 
was  unusually  large,  and  there  was  strong  presumptive  proof 
that  a  part  of  it  was  fraudulent,  the  return  was  held  inad- 
missible in  evidence.'  In  the  report  of  this  case  will  be 
found  several  examples  of  returns  rejected,  and  of  some 
attacked  and  not  rejected  for  want  of  sufficient  proof,  but 

1  Washburn  v.  Voorhees,  2  Bart.,  54* 

2  2  Bart.,  822. 

» Dodge  V.  Brooks,  3  Bart,  78. 


378  ELECTIONS.  [chap.  XIT. 

the  details  are  too  numerous  and  complicated  to  be  inserted 
here  with  profit. 

§  518.  To  set  aside  the  returns  of  an  election  is  one 
thing;  to  set  aside  the  election  itself  is  another  and  very 
different  thing.  The  return  from  a  given  precinct  being  set 
aside,  the  duty  still  remains  to  let  the  election  stand,  and  to 
ascertain  from  other  evidence  the  true  state  of  the  vote. 
The  return  is  only  to  be  set  aside,  as  we  have  seen,  when  it 
is  so  tainted  with  fraud,  or  with  the  misconduct  of  the  elec- 
tion officers,  that  the  truth  cannot  be  deduced  from  it.  The 
election  is  only  to  be  set  aside  when  it  is  impossible  from 
any  evidence  within  reach  to  ascertain  the  true  result, — 
when  neither  from  the  returns  nor  from  other  proof,  nor 
from  all  together,  can  the  truth  be  determined.  It  is  im- 
portant to  keep  this  distinction  in  mind. 

§  519.  A  statute  of  Alabama  empowered  a  "  board  of 
supervisors  of  elections "  to  hear  proof  upon  charges  of 
fraud,  etc.,  and  upon  sufficient  evidence  to  reject  illegal  and 
fraudulent  votes  cast,  "  which  rejection  so  made  as  afore- 
said," the  statute  declared,  "shall  be  final,  unless  appeal  be 
taken  within  ten  days  to  the  probate  court."  The  House  of 
Kepresentatives  of  the  United  States,  in  the  case  of  Norris  v. 
Handley^  refused  to  be  governed  by  this  statute  in  so  far  as 
it  made  the  decision  of  the  board  final.  Upon  this  point 
the  committee's  report  says : 

"  In  the  opinion  of  the  committee  it  is  not  competent  for 
the  Legislature  of  a  State  to  declare  what  shall  or  shall  not 
be  considered  by  the  House  of  Eepresentatives  as  evidence 
to  show  the  actual  vote  cast  in  any  district  for  a  member  of 
Congress,  much  less  to  declare  that  the  decision  of  a  board 
of  county  canvassers,  rejecting  a  given  vote,  shall  estop  the 
House  from  further  inquiry.  The  fact,  therefore,  that  no 
appeal  was  taken  from  the  decision  of  the  board  of  canvass- 
ers rejecting  the  vote  of  Girard  precinct  cannot  preclude 
the  House  from  going  behind  the  returns  and  considering 
the  effect  of  the  evidence  presented." 

1  Smith,  6a 


OHA.P.  XIV.]  CONTESTED   ELECTIONS.  379 

§  520.  Concerning  the  effect  which  should  be  given  to 
the  decision  of  a  board  invested  by  statute  with  power  to 
hear  proof  of  fraud  and  reject  votes,  the  committee  in  the 
same  report  used  this  language : 

"  We  have  already  seen  that  the  statute  of  Alabama  con- 
fers upon  this  board  authority  to  revise  the  return  of  the 
vote  of  the  several  precincts,  and,  upon  sufficient  proof,  to 
throw  out  such  as  in  their  judgment  are  illegal  or  fraudu- 
lent. Although  this  is  an  extraordinary,  not  to  say  a  dan- 
gerous, power  when  placed  in  the  hands  of  a  board  of  this 
character,  with  such  inadequate  facilities  for  obtaining  legal 
evidence  and  deciding  upon  questions  of  fraud,  yet  it  is  be- 
lieved by  the  committee  that  the  action  of  such  a  board 
under  the  statute  in  question,  and  in  pursuance  of  the  power 
conferred  thereby,  is  to  be  regarded  as  prima  facie  correct, 
and  to  be  allowed  to  stand  as  valid  until  shown  by  evidence 
to  be  illegal  or  unjust." 

§  521.  We  have  already  seen  that  when  a  return  is  shown 
to  be  fraudulent  and  set  aside  it  proves  nothing,  and  that 
other  evidence  must  be  resorted  to,  to  show  the  number  of 
votes  cast  and  for  whom  cast.  It  is  very  clear  that  if  the 
returns  are  set  aside,  no  votes  not  otherwise  proven  can  be 
counted.  And  if  there  are  three  candidates  voted  for  at  a 
given  precinct  and  the  return  is  set  aside,  it  is  not  enough  to 
show  the  whole  number  of  votes  cast,  and  the  number  cast 
for  two  of  the  three  candidates ;  it  will  not  be  presumed  that 
the  third  candidate  received  the  remainder.  In  such  a  case 
each  candidate  must  prove,  by  calling  the  voters  as  witnesses 
or  otherwise,  the  number  of  votes  received  by  him.  Thus, 
in  a  recent  case  in  New  York,  it  appeared  that  at  an  election 
for  mayor  of  the  city  of  Albany,  seven  hundred  and  twenty- 
nine  votes  were  given  according  to  the  poll  list.  While  the 
votes  were  being  counted  by  gas-light  (having  been  turned 
from  a  box  upon  the  table),  the  light  suddenly  went  out,  and 
before  the  gas  was  relighted  some  of  the  ballots  were  ab- 
stracted, so  that  upon  completing  the  canvass  only  six  hun- 


380  ELECTIONS.  [chap.  XIY. 

dred  and  fifty-two  ballots  for  mayor  were  found.     Of  this 
latter  number 

Geo.  H.  Thaoher  received  460 

Edmund  L.  Judson    "  113 

Thomas  McCarty       «  79 

Upon  the  trial  of  a  contest  growing  out  of  this  election, 
two  of  the  above-named  candidates,  Judson  and  McCarty, 
made  proof  of  their  vote,  from  which  it  appeared  that  Jud- 
son received  two  hundred  and  McCarty  one  hundred  and 
thirty-four  votes.  Thacher  made  no  proof  of  his  vote,  but 
claimed  that  as  the  whole  number  of  votes  cast  was  shown 
to  have  been  seven  hundred  and  twenty-nine,  he  was  entitled 
to  the  difference  between  that  number  and  the  combined 
vote  proven  for  the  two  other  candidates.  This  position  was 
not  upheld  by  the  court,  and  was  clearly  untenable.  It  ap- 
pears from  the  report  of  this  case  that  the  only  question 
made  was,  as  to  whether  Thacher's  vote  should  be  ascer- 
tained by  dediicting  the  combined  vote  proven  for  the  other 
candidates  from  the  number  of  votes  canvassed,  to  wit,  six 
hundred  and  fifty-two,  or  from  the  number  actually  cast, 
to  wit,  seven  hundred  and  twenty-nine.  The  court  below 
had  allowed  Thacher  the  difference  between  the  sum  of  the 
votes  cast  for  the  other  candidates  and  the  whole  number 
cast,  and  the  Supreme  Court,  having  held  this  to  be  error, 
went  no  further.  From  all  that  appears  in  the  report  of  the 
case,  Thacher  did  not  prove  any  vote  at  all.  He  relied  upon 
the  return,  but  that  should  have  been  set  aside,  if,  as  appears 
to  have  been  the  case,  a  gross  fraud  had  been  perpetrated  in 
the  abstraction  of  part  of  the  ballots  before  the  canvass  and 
in  substituting  others,  the  number  abstracted  and  the  num- 
ber substituted  being  wholly  uncertain.  Such  a  return  can- 
not be  corrected  by  proof.  It  must  be  wholly  disregarded, 
and  the  vote  otherwise  proved,  if  possible,  and  if  other  proof 
is  not  possible  the  election  is  void.^ 
§  522.     Where  an  election  district  is  composed  of  several 

1  People  ex  rd.  Judson  v.  Thacher,  7  Lans.  (N.  Y.),  274 


CHAP.  XIV.]  CONTESTED   ELECTIONS.  381 

subdivisions  or  voting  precincts,  a  failure  of  the  officers  of 
one  of  such  subdivisions  to  make  a  return,  no  matter  from 
what  cause,  will  not  invalidate  the  election,  unless  it  be 
shown  that  the  votes  not  returned  would  have  changed  the 
result.  It  was  so  held  by  the  Supreme  Court  of  New  York 
in  Ms  parte  Heath  and  others^  which  was  a  case  involving 
the  validity  of  an  election  of  ward  officers  in  the  sixth  ward 
of  the  city  of  New  York.  The  ward  was  composed  of  four 
districts,  from  three  of  which  the  returns  were  regular,  but 
as  to  the  remaining  ward  (the  first)  the  inspectors  certified 
thus :  "  It  is  impossible  for  us  to  declare  what  persons  were 
by  the  greatest  number  of  votes  elected,  by  reason  of  lawless 
violence  committed  upon  the  inspectors  of  the  first  district, 
etc.,  and  the  dispersion  of  the  ballots  before  they  were 
counted,"  etc.  There  was  no  evidence  to  show  that  votes 
not  returned  from  the  first  district  would  have  changed  the 
result  as  shown  by  the  returns  from  the  other  three,  and  ac- 
cordingly it  was  held  that  the  persons  receiving  the  highest 
number  of  votes  as  shown  by  the  returns  from  the  three  dis- 
tricts were  entitled  to  qualify ;  and  a  mandamus  was  granted, 
commanding  the  mayor  to  administer  the  oath  of  ofllce  to 
them.  In  the  course  of  his  opinion  in  the  case.  Cowan,  J., 
says :  "  In  no  case  we  are  aware  of  has  it  ever  been  held  that 
the  accidental  loss  of  the  ballots  in  a  single  subdivision  of 
an  election  district,  even  though  it  prevent  a  return,  shall, 
of  itself,  defeat,  or  indeed  detract  from,  the  election  as  it 
stands  on  the  votes  which  are  properly  returned.  Once 
admit  the  principle  that  the  loss  of  a  part  of  the  votes  out 
of  the  number  which  may  or  should  be  given  at  an  election 
avoids  the  whole,  and  it  is  difficult  to  conceive  how  a  system 
of  government  so  entirely  elective  as  ours  could  be  carried 
on.  That  a  part  of  the  votes  given  are  lost  is  never  allowed 
per  se,  even  in  a  private  corporate  election,  as  a  ground  for 
setting  the  election  aside.  It  is  not  enough  to  say  the  result 
is  therefore  uncertain.*  Yet  the  contrary  rule  would  be  much 

13  Hill,  43. 

^  Ex  parte  Murphy,  7  Co  wen,  153. 


382  ELECTIONS.  [chap.  xiy. 

more  tolerated  in  the  case  of  private  corporations  than  in 
that  of  large  municipal  and  civil  divisions.  To  give  the  loss 
any  effect  it  must  at  least  be  shown  that  without  its  happen- 
ing the  result  would  have  been  different."  ^ 

§  523.  The  question,  under  what  circumstances  the  entire 
poll  of  an  election  division  may  be  rejected,  has  been  much 
discussed,  and  conflicting  views  have  been  expressed  by  the 
courts.  The  power  to  reject  an  entire  poll  is  certainly  a 
dangerous  power,  and  though  it  belongs  to  whatever  tribunal 
has  jurisdiction  to  pass  upon  the  merits  of  a  contested  elec- 
tion case,  it  should  be  exercised  only  in  an  extreme  case, 
that  is  to  say,  a  case  where  it  is  impossible  to  ascertain  with 
reasonable  certainty  the  true  vote.^ 

It  must  appear  that  the  conduct  of  the  election  oflBcers  has 
been  such  as  to  destroy  the  integrity  of  their  returns,  and  to 
avoid  the  prima  facie  character  which  they  ought  to  bear  as 
evidence,  before  they  can  be  set  aside,  and  other  proof  de- 
manded of  the  true  state  of  the  vote.'  And  it  is  truthfully 
said  in  Thompson  v.  Ewing^  "  that  the  whole  conduct  of 
election  officers  may,  though  actual  fraud  be  not  apparent, 
amount  to  such  gross  and  culpable  negligence,  such  a  disre- 

iThe  People  ex  reL,  etc.,  u  Vail,  20  Wend.,  13. 

2  Power  to  throw  out  the  vote  of  an  entire  precinct  shoiild  be  exer- 
cised only  under  circumstances  which  demonstrate  beyond  reasonable 
doubt  that  there  has  been  such  disregard  of  law  or  such  fraud  that  it  is 
impossible  to  distinguish  what  votes  were  lawful  and  what  were  unlaw- 
ful, or  to  arrive  at  any  certain  result  whatever,  or  where  the  great  body 
of  voters  have  been  prevented  from  exercising  their  rights  by  violence 
or  intimidation.  Daily  v.  Petroflf,  10  Phila.,  389;  Re  School  Directors,  12 
Id.,  605;  [People  v.  Hanna,  78  Mich.,  515.  In  the  minority  report  in 
Hurd  V.  Romeis,  Mob.,  429,  the  following  general  rule  as  stated  in  Covode 
V.  Foster,  2  Bart,  600,  is  cited  with  approval:  "It  has  long  been  held  by 
all  judicial  tribunals  of  the  country,  as  well  as  by  the  decisions  of  Con- 
gress and  the  Legislatures  of  the  several  States,  that  an  entire  poll 
should  always  be  rejected  for  any  one  of  the  tliree  following  reasons: 
1.  Want  of  authority  in  the  election  board.  2.  Fraud  in  conducting 
the  election.  3.  Such  irregulaxities  or  misconduct  as  render  the  alec> 
tion  void  "]. 

3  Mann  v.  Cassiday,  1  Brewst.,  60. 
♦Id.,  107. 


CHAP.  XIV.]  CONTESTED   ELECTIONS.  883 

gard  of  their  oflBcial  duties,  as  to  render  their  doings  unin- 
telligible or  unworthy  of  credence,  and  their  action  entirely 
unreliable  for  any  purpose."  ^ 

§  524.  It  was  said  by  the  Supreme  Court  of  Pennsylvania, 
in  Chadwick  v.  Melmn^  that  "there  is  nothing  which  will 
justify  the  striking  out  of  an  entire  division  but  an  inability 
to  decipher  the  returns,  or  a  showing  that  not  a  single  legal 
vote  was  polled,  or  that  no  election  was  legally  held."  Un- 
doubtedly the  general  rule  is  that  if  legal  votes  have  been 
cast  in  good  faith  by  honest  electors,  it  is  the  duty  of  the 
court  or  tribunal  trying  a  contest  to  ascertain  their  number 
and  give  them  due  effect,  notwithstanding  misconduct  or 
even  fraud  on  the  part  of  the  election  oflBcers.  Such  fraud 
or  misconduct  may  destroy  the  value  of  the  officer's  certifi- 
cate, and  may  subject  him  to  severe  punishment,  but  the 
innocent  voter  should  not  suffer  on  that  account,  if  by  any 
means  his  rights  can  be  upheld.  And  yet  the  statement  just 
quoted  from  Chadwick  v.  Melvin  is  too  sweeping.  The 
question  is  not  whether  a  single  legal  vote  has  been  polled, 
but  whether  the  voice  of  the  majority  has  been  fairly  ex- 
pressed. In  Biddle  and  Richard  v.  Wing^  the  rule  is  more 
correctly  stated  as  follows :  "  Indeed,  nothing  short  of  the 
impossibility  of  ascertaining  for  whom  the  majority  of  votes 
were  given  ought  to  vacate  an  election,  especially  if  by  such 
decision  the  people  must,  on  account  of  their  distant  and 
dispersed  situation,  necessarily  go  unrepresented  for  a  long 
period  of  time."  * 

§  525.  Although  the  fact  that  the  officers  of  an  election 
were  not  sworn  will  not  of  itself,  and  in  the  absence  of 
fraud,  render  the  return  inadmissible  in  evidence,  yet  if 
fraud  be  proven,  or  it  appear  that  such  officers  have  wilfully 

^See,  also,  Weaver  u.  Given,  Id.,  140;  Batturs  v.  Megary,  lA,  163;  Gib- 
bons V.  Stewart,  2  Brewst,  1;  [Bisbee  v.  Finley,  3  Ella.,  172J. 
2  Bright.  Elec.  Cas.,  551. 
SCI.  &  H.,  504,  506,  507. 
*  [Le  Moyne  u  Farwell,  Smith,  40d.] 


384  ELECTIONS.  [chap.  XIT. 

disobeyed  the  law  or  disregarded  their  duty,  the  fact  that 
they  were  not  sworn  may  become  an  important  fact  in  de- 
termining whether  or  not  the  poll  shall  be  entirely  rejected. 
It  is  impossible  to  define  exactly  the  degree  of  irregularity 
and  illegality  in  the  conduct  of  an  election  which  will  render 
the  return  void,  but  perhaps  the  best  rule  upon  the  subject 
is  this :  If  the  voice  of  the  electors  can  be  made  to  appear 
from  the  returns,  either  alone  or  aided  by  extrinsic  evidence, 
with  reasonable  clearness  and  certainty,  then  the  return 
should  stand,  but  not  otherwise.  This  rule  has  made  neces- 
sary another,  viz. :  That  if  it  appear  that  illegal  votes  have 
been  admitted,  it  is  the  first  duty  of  the  tribunal  trying  the 
contest  to  purge  the  poll  of  such  illegal  votes,  if  there  is 
evidence  upon  which  this  can  be  done,  and  effect  should  be 
given  to  the  majority  of  the  good  votes. 

§  526,  "Where  a  proceeding  in  quo  warranto  or  other 
form  of  election  contest  is  based  upon  an  alleged  fraudulent 
alteration  of  the  original  returns,  it  is  necessary  to  produce 
the  original  returns  with  the  alleged  alteration,  or  to  prove 
the  loss  or  destruction  thereof.  Secondary  evidence  of  the 
contents  of  the  return,  or  of  the  alteration  thereof,  can  only 
be  introduced  in  accordance  with  the  general  rule  that  the 
party  offering  it  has  satisfactorily  accounted  for  the  absence 
of  the  original  and  best  evidence.^ 

§  527.  The  fact  that  the  right  to  register  or  to  vote  has 
been  denied  to  any  person  or  persons  duly  qualified  to  vote 
may  always  be  shown  in  a  case  of  contested  election,  whether 
such  denial  was  fraudulent  or  not.  The  effect  upon  the 
rights  of  electors  and  upon  the  result  of  the  election  is  the 
same  whether  such  denial  be  the  result  of  intentional  wrong 
on  the  part  of  the  ofiicers  of  the  election,  or  of  accident,  or 
an  honest  mistake  as  to  the  law.  And  if  the  number  of 
voters  whose  rights  have  thus  been  denied  is  large  enough 
to  materially  affect  the  result,  such  denial  will  vitiate  the 
election.' 

1  Fletcher  v.  Jeter,  33  La.  Ann.,  401;  Justices'  Opinions,  70  Me.,  570. 
SMcDoweU  v.  Rutherford  Ck)nst  Ca,  96  N.  a,  514;  3  S.  R  Rep.,  351; 


CHAr.  XIV.]  CONTESTED    ELECTIONS.  386 

[§  527«.  The  rule  is  well  established  in  the  House  of  Kep- 
resentatives  of  the  United  States,  that  where  legal  voters 
have  attempted  to  vote  at  the  proper  place,  and  have  been 
denied  the  privilege,  and  it  can  be  proven  for  whom  they 
offered  to  vote,  their  votes  should  be  counted  upon  a  con- 
test.^ In  the  case  of  Frost  v.  Metcalfe  ^  it  was  said  that  four 
things  were  necessary  in  order  to  authorize  the  counting  of 
votes  which  have  been  rejected  at  the  polls:  First,  the  per- 
son offering  to  vote  must  have  been  a  legal  voter  at  the 
place  where  he  offered  to  vote ;  second,  he  must  have  offered 
to  vote;  third,  it  must  have  been  rejected;  and  fourth,  it 
must  be  shown  for  whom  he  offered  to  vote.] 

[§  5275.  The  Constitution  of  Arkansas  contains  the  pro- 
visioi  that  "if  the  officers  of  any  election  shall  unlawfully 
refuse  or  fail  to  receive,  count  or  return  the  vote  or  ballot 
of  any  qualified  elector,  such  vote  or  ballot  shall  neverthe- 
less be  counted  upon  the  trial  of  any  contest  arising  out  of 
such  election."  *  The  Supreme  Court  of  Alabama  has,  how- 
ever, held  that  where  the  votes  of  qualified  electors  have 
been  rejected  by  the  officers  of  the  election  that  such  votes 
cannot  be  counted  upon  a  contest,  but  that  where  such  votes 
have  not  been  received  the  entire  election  should  be  set 
aside.*    But  it  would  seem  that  the  rule  in  such  cases  should 

Perry  v.  Whittaker,  71  N.  C,  475;  Van  Bokkelen  v,  Canaday,  73  N.  C, 
198.  [It  seems  that  a  contrary  rule  obtains  in  Wisconsin.  It  is  there 
held  that  the  person  receiving  a  plurality  of  the  legal  votes  actually 
cast  at  an  election  honestly  conducted  is  entitled  to  the  office  although 
through  an  error  of  judgment  the  inspectors  excluded  votes  of  quali- 
fied electors  sufficient  in  number  to  have  changed  the  result.  State  v. 
Hanson,  87  Wis.,  177;  State  v.  Erickaon,  87  Wis.,  180.] 

1  [Frost  V.  Metcalfe,  1  Ells.,  289;  Sessinghaus  u  Frost,  2  Ells.,  380;  Bis- 
bee  V.  Finley,  2  Ells.,  172;  Covode  v.  Foster,  2  Bart.,  600;  Taylor  v.  Read- 
ing, 2  Bart,  661;  Niblack  v.  Walls,  Smith,  101;  Buchanan  v.  Manning, 
2  Ells.,  287;  Bell  r.  Snyder,  Smith,  247.] 

''[1  Ells.,  289.] 

3  [Sec.  11,  Art.  4;  Govan  u  Jackson,  32  Ark.,  553.] 

4  [State  V,  Judge,  13  Ala.,  805.  See,  also,  Webster  v.  Byrnes,  34  Cal.. 
273.  In  New  York  the  statute  governing  elections  held  by  religious 
corporations  provides  that  the  inspectors  of  such  an  election  shall  be 

25 


380  ELECTIONS.  [chap.  XIV. 

be  the  same  as  that  already  indicated  in  cases  where  legal 
voters  have  been  denied  the  privilege  of  registration,^  and 
that  such  votes  should  be  counted  where  the  qualifications 
and  intent  of  the  voters  are  sufficiently  proven.] 

the  judges  of  the  qualifications  of  the  electors.  Held,  that  under  this 
statute  the  inspectors  must  decide  as  to  the  qualifications  of  a  voter 
when  his  vote  is  offered,  and  they  cannot  afterwards  allow  either 
party  the  benefit  of  votes  offered  but  not  received.  Hartt  v.  Harvey, 
19  How.  Prac,  345.] 
1  [§  136,  ante.'l 


CHAPTEK  XV. 

IMPERFECT  BALLOTS. 

§  528.    Incorrect  spelling  of  names  and  the  like. 

529.  Imperfect  ballot  may  be  explained  by  parol  proof. 

530.  The  true  rule  upon  the  subject. 

530,  531.    Ambiguous  ballot  —  surrounding  circumstances  shown  to 

explain  voter's  intent. 
530.    Illustrations. 

530.    The  rule  as  stated  by  Judge  Cooley. 
632, 533.    Ballots  containing  a  greater  number  of  names  than  there 

are  offices  to  be  filled. 
634.    Ballots  written  or  printed  on  several  pieces  of  paper. 
535,  536.    Ballots  marked  in  violation  of  statute. 

537.  Statutes  forbidding  distinguishing  marks,  when  mandatory, 

538.  Effect  of  statute  regulating  size  and  form  of  ballot* 

539.  What  is  a  "  distinguishing  mark  "  upon  a  ballot. 
539a.  Construction  of  statute  of  North  Carolina. 
539&.  Construction  of  statute  of  Alabama. 

540.  Construction  of  statute  requiring  indorsement  upon  ballot  of 

name  of  office  voted  for. 
641.    Ballot  may  be  bad  in  part  and  good  as  to  remainder. 
543.    Repetition  of  name  of  candidate. 

542.  Distinction  between  ambiguous  and  void  ballots. 

543.  Ballot  may  be  explained,  but  cannot  be  contradicted. 
543.    Writing  prevails  over  print. 

544  Rule  as  to  admissibility  of  evidence  aliunde  to  explain  ballot. 

545.  Courts  not  bound  by  rules  which  govern  canvassers. 

546.  Illustrations. 

547.  The  term  "  written  "  includes  what  is  printed. 

548.  Constitutionality  of  statutes  requiring  ballots  to  be  numbered. 

549.  Substantial  compliance  with  statute  as  to  form  of  ballot  suffi- 

cient. 
549a.  Missouri  decisions  upon  this  subject. 

§  528.  It  frequently  happens  that  ballots  are  deposited 
in  the  box  which  do  not  perfectly  express  the  voter's  Intent. 
This  is  the  case  when  the  name  of  the  person  voted  for  is 


388  ELECTIONS.  [chap,  XV. 

incorrectly  spelled,*  or  where  the  candidate's  initials  are  not 
correctly  given,  or  where  the  office  to  be  filled  is  not  clearly 
designated,  as  well  as  in  many  other  similar  cases. 

In  the  case  of  McKenzie  v.  Braxton^  in  the  House  of 
Kepresentatives  of  the  Forty-second  Congress,  this  subject 
received  a  very  careful  consideration.  That  was  a  case  in 
which  ballots  were  deposited  for  "  E.  M.  Braxton,"  for  "  Elli- 
ott M.  Braxton,"  for  "Elliott  Braxton,"  and  for  "Braxton," 
for  Congress.  The  report  of  the  committee,  which  was 
adopted  by  the  House,  presents  a  correct  statement  of  the 
law  upon  this  subject,  and  the  importance  of  the  questions 
discussed  will  justify  the  following  quotation  therefrom : 

§  529.  "  The  proof  in  this  case  clearly  shows  that  the 
sitting  member  is  known  throughout  the  district  as  well  by 
the  name  of  E.  M.  Braxton  as  by  that  of  Elliott  M.  Braxton ; 
and  that  he  is  familiarly  called  Elliott  Braxton ;  also,  that 
there  is  no  other  person  in  the  district,  excepting  the  sitting 
member's  infant  son,  who  bears  the  name  of  Elliott  M.  Brax- 
ton, E.  M.  Braxton,  or  Elliott  Braxton;  and  that  the  sitting 
member  was  regularly  nominated  for  Congress  by  the  demo- 
cratic or  conservative  convention  of  the  district;  that  his 
letter  of  acceptance  was  signed  E.  M.  Braxton;  that  he 
canvassed  the  district  and  was  the  only  person  of  the  name 
of  Braxton  who  was  a  candidate.  These  facts  are  not  dis- 
puted by  contestant;  but  we  are  asked  to  throw  out  a  large 
number  of  votes,  unquestionably  cast  in  good  faith  for  the 
sitting  member,  upon  the  purely  technical  ground  that  his 
name  was  printed  upon  the  ballots  E.  M.  Braxton,  or  Elliott 
Braxton,  instead  of  Elliott  M.  Braxton.  The  grounds  upon 
which  the  contestant  makes  this  claim  seem  to  be  — 

"  1.  That  we  are  not  permitted  to  look  beyond  the  ballot 
to  ascertain  the  voter's  intent;  and 

"  2.  That  the  ballots  in  question  cannot,  upon  their  face, 
be  held  to  have  been  intended  for  Elliott  M.  Braxton. 

"  It  may  be,  and  doubtless  is,  sometimes  necessary  to  sacri- 

1  [State  V.  Walsh,  62  Conn.,  26.] 
2[Smith,19.J 


CHAP.  XV.]  IMPERFECT  BALLOTS.  389 

fioe  justice  in  a  particular  case,  in  order  to  maintain  an 
inflexible  legal  rule,  but  all  just  men  must  regret  such 
necessity  and  avoid  it  when  possible  to  do  so.  Your  com- 
mittee are  clearly  of  the  opinion  that  no  such  necessity  exists 
here.  So  far  from  demanding  such  a  sacrifice  of  right,  the 
law,  as  well  as  equity,  forbids  it. 

"  The  contestant  asks  the  House  to  apply  the  strict  rule 
which  has  sometimes,  though  not  always,  been  held  to  gov- 
ern canvassing  officers,  whose  duty  is  purely  ministerial, 
who  have  no  discretionary  powers,  and  can  neither  receive 
nor  consider  any  evidence  aliunde  the  ballots  themselves. 
It  is  manifest  that  the  House,  with  its  large  powers  and 
wide  discretion,  should  not  be  confined  within  any  such 
narrow  limits.  The  House  possesses  all  the  powers  of  a 
court  having  jurisdiction  to  try  the  question,  who  was  elected  ? 
It  is  not  even  limited  to  the  powers  of  a  court  of  law  merely, 
but,  under  the  Constitution,  clearly  possesses  the  functions 
of  a  court  of  equity  also.  If,  therefore,  it  were  conceded 
that  the  canvassers  erred  in  counting  for  the  sitting  member 
the  votes  cast  for  E.  M.  Braxton  and  Elliott  Braxton,  it 
would  not  determine  the  question  as  to  what  the  House 
should  do.  What,  then,  is  the  true  rule  for  the  government 
of  the  House  in  determining  what  votes  to  count  for  the 
sitting  member?  Your  committee  are  clearly  of  the  opinion 
that  where  the  ballots  give  the  true  initials  of  the  candidate's 
name,  that  is  sufficient ;  and  we  therefore,  without  hesitation, 
hold  that  the  ballots  given  for  E.  M.  Braxton  must  be  counted 
for  the  sitting  member. 

"Another  objection,  urged  with  much  more  zeal  by  contest- 
ant's counsel,  is  to  the  votes  cast  for  Elliott  Braxton,  two 
hundred  and  thirty-five  in  number.  These,  it  is  urged,  can- 
not be  counted  for  Elliott  M.  Braxton,  the  sitting  member. 
Even  if  we  were  not  permitted  to  look  beyond  the  ballots 
themselves,  we  could  have  little  doubt  as  to  our  duty ;  but, 
under  some  circumstances,  and  for  certain  purposes,  evidence 
outside  of  the  ballots  themselves  is  admissible.  It  is  true 
that  no  evidence  aliunde  can  be  received  to  contradict  the 


390  ELECTIONS.  [chap.  XV. 

ballot,  nor  to  give  it  a  meaning  when  it  expresses  no  mean- 
ing of  itself,  but,  if  it  be  ambiguous  or  of  doubtful  import, 
the  circumstances  surrounding  the  election  may  be  given  in 
evidence  to  explain  it,  and  to  enable  the  House  to  get  at  the 
voter's  intent.  "We  see  no  reason  why  a  ballot,  ambiguous 
on  its  face,  may  not  be  construed  in  the  light  of  surrounding 
circumstances,  in  the  same  manner  and  to  the  same  extent  as 
a  written  contract.  The  true  rule,  which  should  govern  upon 
the  subject  of  the  admissibility  of  extrinsic  evidence  to  ex- 
plain such  a  ballot,  is  thus  laid  down  in  Cooley  on  Constitu- 
tional  ZimitationSf  pa^e  611: 

" '  "We  think  evidence  of  such  facts  as  may  be  called  the 
circumstances  surrounding  the  election,  such  as  who  were 
the  candidates  brought  forward  by  the  nominating  conven- 
tions ;  whether  other  persons  of  the  same  name  resided  in  the 
district  from  which  the  officer  was  to  be  chosen ;  and  if  so, 
whether  they  were  eligible  or  had  been  named  for  the  office ; 
if  the  ballot  was  printed  imperfectly,  how  it  came  to  be  so 
printed,  and  the  like,  is  admissible  for  the  purpose  of  show- 
ing that  an  imperfect  ballot  was  meant  for  a  particular 
candidate,  unless  the  name  is  so  different  that  to  thus  apply 
it  would  be  to  contradict  the  ballot  itself;  or  unless  the 
ballot  is  so  defective  that  it  fails  to  show  any  intention  what- 
ever, in  which  case  it  is  not  admissible.' 

"  To  the  same  effect  are  the  following  decisions:  Attorney 
General  v.  Ely^  People  v.  Ferguson^  People  v.  Gooh^  People 
V.  Pease}  Canvassing  officers  must  record  the  ballots  as 
they  are  and  can  receive  no  extrinsic  evidence.* 

"  In  People  v.  Ferguson^  supra,  it  was  held  that,  on  the 
trial  of  a  contested  election  case  before  a  jury,  ballots  cast 
for  H.  F.  Yates  should  be  counted  for  Henry  F.  Yates,  if, 
under  the  circumstances,  the  jury  were  of  the  opinion  that 

UWis.,  420,  43a 

28  Cowen,  103. 

814  Barbour,  259. 

<27N.  Y.,  45,  64 

6  Opinion  of  Justices,  64  Me.,  596k 


CHAP.  XV.]  IMPERFECT   BALLOTS.  891 

they  were  intended  for  him;  and  that  to  arrive  at  that  inten- 
tion it  was  competent  to  prove  that  he  generally  signed  his 
name  H.  F.  Yates;  that  he  had  before  held  the  same  office 
for  which  these  votes  were  cast,  and  was  then  a  candidate 
again ;  that  the  people  generally  would  apply  the  abbrevia- 
tion to  him,  and  that  no  other  person  was  known  in  the 
county  to  whom  it  would  apply.  This  ruling  was  followed 
in  People  v.  Seaman^  and  in  People  v.  CooJc?  In  Attorney 
General  v.  Ely^  the  court  went  so  far  as  to  hold  that  ballots 
cast  for  "D.  M.  Carpente,"  "M.  D.  Carpenter,"  "M.  T.  Car- 
penter," and  "  Carpenter "  might  be  counted  for  Matthew 
H.  Carpenter,  upon  proof  made  to  the  satisfaction  of  the 
jury  that  they  were  intended  for  him,' 

"  In  an  early  case  in  Michigan  *  it  was  held  that  no  extrin- 
sic evidence  was  admissible  in  explanation  or  support  of  the 
ballot,  and  this  ruling  has  been  followed  in  that  State  in 
several  later  cases.*  The  Supreme  Court  of  that  State,  how- 
ever, in  its  latest  decision  on  the  subject,®  through  a  major- 
ity of  the  judges,  expresses  the  opinion  that  the  doctrine 
laid  down  in  People  v.  Tisdale  is  erroneous,  and  it  is  ad- 
hered to  upon  the  sole  ground  that  it  has  been  too  long  the 
law  of  that  State  to  be  overthrown,  except  by  the  Legislature. 
The  chief  justice,  in  a  masterly  dissenting  opinion,  advocates 
the  entire  overthrow  by  the  Court  of  the  erroneous  and  per- 
nicious doctrine  of  the  earlier  cases.  We  quote  from  this 
dissenting  opinion  as  follows: 

^' '  AU  rules  of  law  which  are  applied  to  the  expression,  in 
constitutional  form,  of  the  popular  will  should  aim  to  give 
effect  to  the  intention  of  the  electors ;  and  any  arbitrary  rule 
which  is  to  have  any  other  effect,  without  corresponding 
benefit,  is  a  wrong,  both  to  the  parties  who  chance  to  be 

1  5  Denio,  409. 

2  8N.  Y.,  67. 

3  [Wallace  v.  McKinley,  Mob.,  185.] 

4  People  u  Tisdale,  1  Doug.,  59,  65. 
8  [People  V.  McNeal,  63  Mich.,  294.] 
«  People  V.  Cicott,  16  Mich.,  282. 


392  ELECTIONS.  [OHAP.  XT. 

affected  by  it  and  to  the  public  at  large.  The  first  are  de- 
prived of  their  oflBces,  and  the  second  of  their  choice  of  pub- 
lic servants. 

" '  The  chief  argument  in  favor  of  the  rule  of  People  v. 
Tifidale  is  that  ballots  cast  for  parties  by  their  initials  only 
are  so  uncertain  that  they  cannot  be  applied  without  resort 
to  extrinsic  and  doubtful  evidence  to  ascertain  the  voter's 
intention,  and  therefore  should  be  rejected.  But  nothing 
can  be  more  fallacious.  It  frequently  happens  that  a  man 
is  better  known  by  the  initials  of  his  baptismal  name  than 
by  the  name  fully  expressed ;  simply  because  he  is  not  in  the 
habit  of  writing  his  name  in  full,  or  of  being  thus  addressed 
in  business  transactions.  I  think  it  highly  probable  that 
this  is  the  case  with  each  of  the  parties  before  us. 

"'In  political  conventions,  or  legislative  bodies,  no  one 
deems  it  important  to  write  the  full  name  of  a  candidate  for 
whom  he  is  voting  and  no  one  ever  thinks  of  challenging  the 
vote  for  uncertainty.  Under  the  application  of  this  rule  to  the 
present  case,  the  curious  spectacle  will  be  exhibited  of  votes 
cast  for  E.  V.  Cicott  and  G.  O.  "Williams  being  rejected  be- 
cause the  courts  cannot  determine  for  whom  they  were  in- 
tended, while  not  a  single  person  in  the  county  of  Wayne 
has  the  slightest  doubt  that  they  were  cast  for  Edward  V. 
Cicott  and  Gurdon  O.  "Williams,  the  opposing  candidates  at 
this  election.  Thus  the  courts  are  required  to  close  their 
eyes  to  what  everybody  else  can  see  distinctly.  The  fallacy 
of  the  rule  consists  in  its  assuming  that  a  certain  form  of 
ballot  clearly  expresses  the  voter's  intention,  while  another 
form  is  so  uncertain  that  it  is  dangerous  to  attempt  to  arrive 
at  the  meaning  by  evidence.  But,  in  fact,  no  ballot  can  iden- 
tify with  positive  certainty  the  persons  for  whom  it  is  cast ; 
and  notice  must  be  taken  of  extrinsic  circumstances  in  order 
to  apply  it.  It  is  always  possible  that  other  persons  may  re- 
side in  the  election  district  having  the  same  names  with 
some  of  the  candidates;  but  neither  the  canvassers  nor  the 
courts  ever  assume  that  there  is  any  diflSculty  in  these  cases, 
but  they  count  the  votes  for  the  persons  who  have  been  put 


CHAP.  XV.]  IMPEEFECT   BALLOTS.  393 

forward  for  the  respective  offices.  And  in  some  cases,  where 
an  element  of  uncertainty  is  introduced  into  the  ballot  un- 
necessarily, as  by  the  addition  of  an  erroneous  designation, 
the  courts  resolve  the  difficulty  by  rejecting  the  erroneous 
addition  and  counting  the  ballot  for  the  person  for  whom  it 
was  evidently  designed.'  ^ 

§  530.  "  There  is,  then,  no  room  for  doubt  that  the  rule 
laid  down  by  Judge  Cooley,  and  quoted  above,  is  the  true 
rule,  having  for  its  support  both  authority  and  reason.  To 
reject  it  and  establish  the  doctrine  contended  for  by  contest- 
ant would  be  to  defeat,  in  every  such  case  as  the  one  before 
us,  the  undoubted  will  of  the  majority.  And  this  injustice 
would  not  be  compensated  by  the  establishment  of  a  rule 
which  is  in  itself  either  salutary  or  important.  The  cases  are 
numerous  where  an  imperfect  ballot,  by  the  aid  of  extrinsic 
evidence,  can  be  made  clear  and  perfect.  JS'o  harm  can  re- 
sult from  admitting  such  extrinsic  evidence  so  long  as  it  is 
only  admitted  to  cure  or  explain  such  imperfections  and  am- 
biguities as  could  be  cured  if  they  occurred  in  the  most 
solemn  written  instruments,  and  to  this  extent,  and  no  fur- 
ther, would  we  carry  it.  Thus  guarded  and  qualified,  the 
rule  is  most  salutary  and  most  just."  * 

1  And  see  State  v.  Gates,  43  Conn.,  533;  Talkington  v.  Turner,  71  111., 
234;  State  v.  Griffey,  5  Neb.,  161;  People  v.  Kennedy,  37  Mich.,  67;  Lee 
V.  Rainey,  [Smith,  589,  and  Wimmer  v.  Eaton,  72  Iowa,  374].  In  the  case 
of  State  V.  The  Judge,  etc.,  13  Ala.,  805,  it  was  held  that  ballots  for 
"Pence  "could  not  be  counted  for  "Spence."  In  Opinion  of  Justices, 
64  Me.,  596,  it  was  held  that  the  Governor  and  Council  cannot  hear  evi- 
dence to  explain  the  ballot  of  a  voter.  This  upon  the  ground  that  they 
are  merely  ministerial  officers.  It  was  also  held  that  votes  for  "  W.  H. 
Smith "  or  "W.  Smith"  could  not  be  counted  for  William  H.  Smith. 
In  so  far  as  this  case  holds  that  there  is  no  presumption  that  "  W.  H. 
Smith"  and  "William  H.  Smith"  are  one  and  the  same  person, it  is  not 
well  supported  by  authority. 

2  [Boynton  v.  Loring,  1  Ells.,  346;  Wilds  v.  State  Board  of  Canvassers, 
50  Kan,,  144;  Brown  v.  McCullum,  76  Iowa,  479.  The  ballot  is  indica- 
tive of  the  will  of  the  voter.  It  is  not  required  that  it  should  be  accu- 
rately or  nicely  written,  or  that  the  name  of  the  candidate  voted  for 
should  be  correctly  spelled.  It  should  be  read  in  the  light  of  all  the 
circumstances  surrounding  the  election  and  the  voter,  and  the  object 


394:  ELECTIONS.  [CHAP.  XV. 

§  531.  The  doctrine  of  this  report  will  be  found  fully  sus- 
tained by  the  decision  of  the  House  of  Eepresentatives  in 
the  case  of  Chapman  v.  Ferguson,^  where  votes  for  "  Judge 
Ferguson  "  were  counted  for  the  sitting  member,  Fenner 
Ferguson,  and  in  which  also  ballots  which  read  "  Bird  B. 
Chapman  for  Congress,"  instead  of  "  For  Congress,  Bird  B. 
Chapman,"  were  held  good,  and  counted  for  contestant. 
And  see,  also,  Gunter  v.  Wilshire^-  where  votes  returned  for 
"  T.  M.  Gunter,"  "  T.  Eoss  Gunter,"  "  Thomas  N.  Gunter," 
and  "  Gunter,"  were,  upon  proof  of  the  intention  of  the 
voters,  allowed  to  be  counted  for  Thomas  M.  Gunter.  In 
this  case,  however,  the  committee  found  that  the  original 
ballots  were  correct,  and  the  error  was  in  the  returns.^ 

should  be  to  ascertain  and  to  carry  into  effect  the  intention  of  the 
voter,  if  it  can  be  determined  with  reasonable  certainty.  The  ballot 
should  be  liberally  construed,  and  the  intendments  should  be  in  favor 
of  a  reading  and  construction  which  will  render  the  ballot  effective, 
rather  than  some  conclusion  which  will,  on  a  technical  ground,  render 
it  ineffective.     Behrensmeyer  v.  Kreitz,  135  IIL,  495.J 

1 1  Bart.,  267. 

2  43d  Congress  [Smith,  233]. 

'  If  a  ballot  expresses  the  intention  of  the  voter  without  a  reasonable 
doubt,  it  is  sufficient,  though  technically  inaccurate.  Hawes  v.  Miller, 
56  Iowa,  395 ;  [Calvert  v.  Wbitmore,  45  Kan.,  99;  Gumm  v.  Hubbard,  97 
Mo.,  311.  Ballots  which,  on  account  of  a  mistake  of  the  printer,  gave 
the  name  of  the  candidate  as  "Herbert"  should  be  counted  for  Mr. 
Herbert,  who  was  the  only  person  of  a  like  name  being  voted  for  as  a 
candidate.  Strobach  u  Herbert,  2  Ells.,  5.  Ballots  reading  "James  H. 
Rainey  "  counted  for  Joseph  H.  Rainey.  Lee  v.  Rainey,  Smith,  589.  In 
a  case  in  Iowa  the  name  of  "  E.  W."  was  printed  upon  the  ballot  as 
"  F.  W."  During  the  progress  of  the  election  the  mistake  was  discov- 
ered and  it  was  corrected  by  writing  "E."  on  the  remaining  ballots. 
Those  who  voted  the  "F.  W."  ballots  thought  they  were  voting  for 
"E.  W."  There  was  no  one  by  the  name  of  "F.  W."  in  the  township 
eligible  to  the  office.  Held,  that  these  facts  were  admissible  in  evi- 
dence to  show  the  intention  of  the  voters,  and  "F.  W."  ballots  should 
be  counted  for  "  E.  W."  Wimmer  v.  Eaton,  72  Iowa,  374  The  only 
candidates  for  treasurer  being  John  B.  Kreitz,  Charles  F.  A.  Behrens- 
meyer, and  B.  A.  Dikerman,  votes  for  John  M.  Kreitz,  although  that 
was  the  name  of  a  brother  of  John  B.  Kreitz,  who  had,  at  a  prior  time, 
held  the  office  of  sheriff  and  some  minor  office,  are  properly  counted 
for  John  B.  Kreitz,  he  being  ordinarily  known  as  "  John,"  and  his 


CHAP.  XV.]  IMPERFECT   BALLOTS.  305 

§  532.  It  has  been  held  that  if  a  ballot  contains  the 
names  of  two  persons  for  the  same  office,  when  but  one  is 
to  be  chosen,  it  is  bad  as  to  both,^  but  this  does  not  vitiate 
it  as  to  candidates  for  other  oflBces  upon  the  same  ticket.  It 
often  happens  that  an  elector,  without  any  evil  intent,  casts 
a  ballot,  through  inadvertence  or  mistake,  which  contains 
the  names  of  two  persons  for  one  and  the  same  office. 
Tickets  are  often  printed  in  this  way,  with  a  view  to  giving 
the  voter  a  choice,  which  can  be  indicated  by  striking  off 
one  of  the  names.  It  would  be  a  very  rigorous  and  unjust 
rule  to  saj  such  a  ballot  is  bad  as  to  all  other  names  on  it 
because  bad  as  to  the  two  names  indicated  for  the  same  of- 
fice.^ 

§  533.  It  is  well  settled  that  where  a  limited  number  of 
persons  are  to  be  chosen  to  fill  a  given  office  —  as,  for  in- 
stance, where  the  law  provides  for  the  election  by  the  same 
constituency  of  two  Representatives  in  the  State  Legisla- 
ture—  a  ballot  containing  the  names  of  a  greater  number 

brother  as  "  Mat,"  and  the  vote  being  evidently  intended  for  John  B. 
Kreitz.  There  being  others  of  the  name  of  the  candidate  Behrens- 
meyer  resident  in  the  county,  votes  for  "Behernsmeyer"  are  prop- 
erly counted  for  him,  no  others  of  that  name  being  candidates.  Tes- 
timony is  admissible  to  explain  that  tickets  poorly  spelled,  as  for 
"Krietz,"  or  "Critz,"  or  even  omitting  the  "z,"  are  intended  for  the 
candidate  Kreitz,  the  names  being  idem  sonans.  The  converse  applies 
to  a  ticket  for  "  Dehbenmeyer,"  as  intended  for  a  candidate  Behrens- 
meyer,  the  names  not  being  idem  sonans.  The  partial  obliteration,  in 
a  ballot,  of  the  printed  name  of  the  office  by  the  name  of  the  candidate 
written  in,  may  be  orally  explained  as  unintentional.  Kreitz  v.  Beh- 
rensmeyer,  125  Bl.,  141.  A  different  rule  from  that  laid  down  in  Kreitz 
V.  Behrensmeyer  has  been  adopted  in  "Wisconsin,  where  it  has  been 
held  that  where  two  men  in  the  same  town  were  of  the  same  name, 
one  being  "  C.  Sr.,"  and  the  other  "  C.  Jr.,"  and  both  were  eligible  to  a 
certain  office  for  which  "C.  Sr."  was  a  candidate,  parol  evidence  was 
inadmissible  to  prove  that  ballots  bearing  the  name  of  "  C.  Jr."  were 
intended  for  "C.  Sr."  This  for  the  reason  that  such  ballots  were  not 
ambiguous.    State  v.  Steinborn  (Wis.),  66  N.  W.  Rep.,  798.] 

^  [Montgomery  v.  O'Dell,  67  Hun,  169.  See,  also,  Sawin  v.  Pease 
(Wyo.),  43  Pac.  Rep.,  750.] 

'Commonwealth  v.  Ely,  4  Wis.,  420;  S.  C,  Bright  Elec.  Cas.,  258;  [Fen- 
ton  V.  Scott,  17  Oreg.,  189]. 


396  ELECTIONS.  [chap.  XV. 

for  that  oflBce  is  void.  It  was  accordingly  held  in  People  v. 
Loomis^  that  where  the  number  of  constables  to  be  chosen 
was  limited  to  four,  ballots  containing  the  names  of  five  per- 
sons designated  as  voted  for  for  that  oflRce  cannot  be  can- 
vassed, but  must  be  rejected.  "  If,"  says  Nelson,  J.,  "  one 
elector  can  cast  a  ballot  containing  jf?ue  names,  he  may  one 
of  eighty  and  thus  vote  (if  he  chooses  to  insert  the  names)  for 
both  tickets.  It  would  be  impossible  for  the  presiding  offi- 
cers to  select  the  four  according  to  the  intention  of  the  voter, 
and  four  only  should  be  counted."^ 

§  534.  Unless  there  be  a  statutory  provision  requiring 
all  officers  to  be  voted  for  on  a  single  paper  ballot,  a  vote  is 
not  necessarily  invalidated  by  being  written  or  printed  on 
several  pieces  of  paper.  Thus,  it  has  been  held  in  Kansas 
that  where  several  officers  are  to  be  voted  for,  a  ballot  is  not 
to  be  rejected  because  consisting  of  two  pieces  of  paper,  one 
of  which  contains  votes  for  township  officers  and  the  other 
for  county  officers;  provided  the  vote  is  cast  in  good  faith 
by  a  legal  voter.' 

§  535.  In  many  of  the  States  there  are  statutory  provis- 
ions prohibiting  the  marking  of  ballots,  or  the  placing  upon 
the  exterior  thereof  any  character  or  iigure.  The  purpose 
of  these  statutes  is,  of  course,  to  protect  the  secrecy  of  the 
ballot,  and  public  policy  demands  their  enforcement.*    Cases 

18  Wend.,  306. 

'  And  see  State  v.  Griffey,  5  Neb.,  161. 

'Wildraan  v.  Anderson,  17  Kan.,  344. 

<  [Fields  V.  Osborne,  60  Conn.,  544;  Spurgin  v.  Thompson,  37  Neb.,  89; 
People  V.  Board  of  Supervisors  of  Duchess  County,  135  N.  Y.,  523; 
Quinn  v.  Markoe,  37  Minn.,  439.  Ballots  folded  in  an  unusual  and  strik- 
ing manner  rejected;  also  creased  and  torn  ballots.  State  v.  Walsh,  63 
Conn.,  260.  A  ballot  furnished  by  the  State  is  not  a  marked  ballot 
•within  the  law  because  of  any  irregularity  in  making  it  up  or  printing 
it.  People  V.  Wood,  148  N.  Y.,  142.  When  a  ballot  has  a  mark  or  fig- 
ures on  the  back  by  accident  or  through  inadvertence  it  should  be 
counted.  Wallace  v.  McKinley,  Mob.,  185.  A  printer's  dash  iipon  a 
ticket  is  not  a  distinguishing  mark.  Lynch  v.  Chalmers,  2  Ells.,  338. 
Held  in  Texas,  that  a  ballot  should  not  be  rejected  because  the  voter 
has  written  his  name  on  it,  nor  because  election  officers  have  indorsed 


CHAP.  XV.]  IMPERFECT  BALLOTS.  397 

will  arise,  however,  in  which  it  will  be  found  very  difficult, 
if  not  impossible,  to  carry  out  strictly  all  provisions  of  this 
character.  "We  have  shown  in  another  connection,  that, 
although  the  law  forbids  the  numbering  of  ballots,  yet  if, 
under  a  misapprehension  of  their  duty,  the  judges  of  election 
number  all  the  ballots  to  correspond  with  a  number  opposite 
to  the  name  of  the  voter  on  the  poll  list,  and  if  no  one  is 
injured  thereby,  the  ballots  thus  marked  should  not  be  re- 
jected.^ 

§  536.  And  it  has  also  been  held  that  where  the  statute 
provided  that  all  ballots  should  be  written  or  printed  upon 
white  paper,  without  any  marks  or  figures  thereon  to  distin- 
guish one  from  another,  ballots  upon  paper  tinged  with  blue, 
and  which  had  ruled  lines,  were  legal  ballots  within  the 
meaning  of  the  act.^  This  ruling,  however,  went  upon  the 
ground  that  the  ruled  paper  was  not  used  with  any  intent  to 
violate  the  statute ;  and  it  is  quite  clear  that  where  the  stat- 
ute distinctly  declares  that  ballots  having  distinguishing 
marks  upon  them  shall  not  be  received,  or  shall  be  rejected, 
it  should  be  construed  as  mandatory  and  not  simply  direct- 
ory. And  so  it  was  held  by  the  Supreme  Court  of  Pennsyl- 
vania, under  a  statute  of  this  character,  that  ballots  having 
an  eagle  printed  thereon  were  in  violation  of  the  law  and 
should  be  rejected.' 

§  537.  "Where  a  statute  prohibits  the  marking  of  ballots 
so  that  they  may  be  distinguished  by  others  than  the  voter 
and  declares  such  ballots  void,  there  is  good  reason  for  con- 

their  initials  on  it.  Hanscom  v.  State  (Tex.  Civ.  Ap.),  31  S.  W.  Rep., 
547.] 

1  McKenzie  v.  Braxton,  43d  Congress  [Smith,  19;  Dennis  v.  Coughlin 
(Nev.),  41  Pac.  Rep.,  768]. 

2  People  V.  Kilduflf,  15  111.,  492;  [Boyd  v.  Mills,  53  Kan.,  594;  State  v. 
Saxon,  30  Fla.,  668.  It  has  been  held  in  Oregon  that  tinted  ballot  paper 
purchased  from  the  Secretary  of  State  as  provided  by  law  may  be  used, 
although  it  is  a  surplus  purchased  for  a  former  election  and  although 
its  color  makes  the  ballots  distinguishable.  State  v.  Wolf,  17  Oreg., 
119]. 

8  Commonwealth  v.  Woelper,  28  S.  &  R,  29;  Luzerne  Co.  Election,  3 
Penn.  L.  J.,  155;  Clinton  Co.  Election,  Id.,  160. 


398  ELECTIONS.  [chap.  XV. 

struing  such  statute  as  mandatory,^  Such  marks  destroy  the 
secrecy  of  the  ballot,  and  it  is  well  known  that  the  plan  of 
voting  by  ballot,  instead  of  viva  voce,  was  adopted  for  the 
very  purpose  of  securing  to  every  voter  absolute  secrecy  if 
he  desires  it,  and  protecting  him  therein;  and  this  was 
thought  necessary  in  order  to  place  the  poor  and  dependent 
voter  in  a  situation  where  he  may  act  according  to  his  own 
judgment,  and  without  intimidation  from  the  rich  or  power- 
ful.^ In  Commonwealth  v.  Woelper*  the  Supreme  Court  of 
Pennsylvania  said : 

"The  engraving  (on  the  ticket)  might  have  several  ill 
effects.  In  the  first  place  it  might  be  perceived  by  the  in- 
spectors, even  when  the  ticket  was  folded.  This  knowledge 
might  possibly  influence  them  in  receiving  or  rejecting  the 
vote.  But  in  the  next  place  it  deprived  those  persons  who 
did  not  vote  the  German  tickets  (which  had  an  eagle  on 
them)  of  that  secrecy  which  the  election  by  ballot  was  in- 
tended to  secure.  A  man  who  gave  in  a  ticket  without  an 
eagle  was  set  down  as  anti-German  and  exposed  to  the  ani- 
mosity of  that  party.    Another  objection  is  that  these  sym- 

i  [Zeis  V.  Passwater,  143  Ind.,  375;  Baxter  v.  Ellis,  111  N.  C,  124;  Tebbe  v. 
Smith,  108  CaL,  101;  Pennington  v.  Hare,  60  Minn.,  146;  Sego  v.  Stoddard, 
136  Ind.,  297,  in  which  will  be  found  a  consideration  of  what  are  distin- 
guishing marks  under  the  Indiana  statute.  Where  it  was  provided  by 
statute  that  a  voter  who  wished  to  vote  a  straight  ticket  should  put  a 
cross  at  the  head  of  the  party  ticket  which  he  intended  to  vote,  and 
certain  voters  put  crosses  at  the  heads  of  two  columns,  one  marked 
"  Republican  "  and  one  "  Citizens' "  ticket,  this  was  held  to  be  an  un- 
necessary and  hence  a  "distinguishing"  mark,  although  the  two  tickets 
were  identical.  Here  the  court  declared  the  rule  to  be  that  "  any  mark 
upon  a  ballot  other  than  one  appropriate  and  necessary  to  designate 
the  intention  of  the  voter  must  be  regarded  as  a  '  distinguishing  mark.' " 
Attorney-General  v.  Glaser,  102  Mich.,  396.] 

« [Houston  V,  Steele  (Ky.),  34  S.  W.  Rep.,  6.  But  where  ballots  for 
judicial  officers  and  those  for  other  officers  elected  on  the  same  day  are 
required  to  be  put  in  separate  boxes,  ballots  having  the  word  "  Judi- 
ciary "  printed  on  the  back  thereof  are  not  void  either  as  destroying 
the  secrecy  of  the  ballot  or  as  being  in  violation  of  a  statute  forbid- 
ding the  printing  of  any  mark  or  device  upon  the  back  of  the  ballots. 
State  V.  Borden,  77  Wis.,  60L] 

*  Supra. 


CHAP.  XV.]  niPEKFECT   BALLOTS.  3f  9 

bols  of  party  increase  that  heat  which  it  is  desirable  to 
assuage." 

§  538.  The  Supreme  Court  of  California  has  had  occa- 
sion to  consider  the  force  and  efifect  of  a  statute  regulating 
the  size  and  form  of  ballots,  the  kind  of  paper  to  be  used, 
the  kind  of  type  to  be  used  in  printing  them,  etc.  The 
Court  held,  and  we  think  upon  the  soundest  reason,  that  as 
to  those  things  over  which  the  voter  has  control,  the  law  is 
mandatory,  and  that  as  to  such  things  as  are  not  under  his 
control,  it  should  be  held  to  be  directory  only.^  The  con- 
clusion of  the  Court  was  that  the  purpose  and  object  of  the 
statute  was  to  secure  the  freedom  and  purity  of  elections, 
and  to  place  the  elector  above  and  beyond  the  reach  of  im- 
proper influences  or  restraint  in  casting  his  ballot,  and  that 
it  should  have  such  a  reasonable  construction  as  would  tend 
to  secure  these  important  results.  And  so  construing  the 
statute,  the  Court  concluded  that  a  ballot  cast  by  an  elector 
in  good  faith  should  not  be  rejected  for  failure  to  comply 
with  the  law  in  matters  over  which  the  elector  had  no  con- 
trol ;  such  as  the  exact  size  of  the  ticket,  the  precise  kind  of 
paper  or  the  particular  character  of  type  or  heading  used.' 
But  if  the  elector  wilfully  neglects  to  comply  with  require- 
ments over  which  he  has  control,  such  as  seeing  that  the 
ballot,  when  delivered  to  the  election  officers,  is  not  so 
marked  that  it  may  be  identified,  the  ballot  should  be  re- 
jected.' 

§  539.  A  statute  of  Indiana  provided  that  all  ballots 
should  "  be  printed  on  plain  white  paper  without  any  distin- 
guishing marks  or  other  embellishment  thereon  except  the 
names  of  candidates  and  the  officers  to  be  voted  for,"  and 
that  "  inspectors  of  election  shall  refuse  all  ballots  offered  of 
any  other  description."     Under  this  statute  it  has  been  re- 

1  Kirk  V.  Rhoads,  46  Cal.,  398. 

2  [Lindstrom  v.  Board  of  Canvassers  of  Manistee  Co.,  94  Mich.,  467;  Peo- 
ple V.  Wood,  148  N.  Y.,  142;  English  v.  Peelle,  Mob.,  167;  MilhoUand  v. 
Bryant,  39  Ind.,  363;  State  v.  Adams,  65  Ind.,  893.] 

»  [Lynch  v.  Chalmers,  2  Ells.,  338.] 


4:00  ELECTIONS.  [chap.  XV, 

peatedly  held  by  the  Supreme  Court  of  that  State  that  a 
ballot  may  be  headed  with  the  words  "  Republican  ticket '' 
or  "  Democratic  ticket "  printed  on  the  same  side  with  the 
names  of  the  candidates.  These  are  not  "  distinguishing 
marks  or  embellishments "  within  the  meaning  of  the  stat- 
ute.* The  law  was  framed  to  forbid  any  marks  or  charac- 
ters on  the  exterior  of  the  ballot  to  distinguish  it,  and  thus 
destroy  its  secrecy.^ 

[§  539a.  An  act  of  the  Legislature  of  North  Carolina' 
provided  that  ballots  should  be  "  without  device,"  and  that 
any  ballot  having  a  device  upon  it  should  be  void.     The 

1  [But  where  tickets  were  headed  with  the  words  "  Citizens'  ticket," 
but  were  really  issued  by  the  Republican  party,  they  were  held  to  be 
illegal  tickets,  there  being  in  fact  no  party  known  as  the  Citizens'  party. 
Talcott  V.  Philbrick,  59  Conn.,  472.  It  is  held  under  the  statute  of  Texas 
that  a  ticket  will  not  be  vitiated  because  the  names  of  more  than  one 
political  party  are  found  on  the  ticket  above  the  names  of  the  candi- 
dates who  belong  respectively  to  such  parties.  Williams  v.  State,  69 
Tex.,  368.J 

2  Druliner  v.  State,  29  Ind.,  308;  Napier  v.  Mayhew,  35  Ind.,  276.  And 
this  ruling  was  followed  by  the  lower  House  of  the  43d  Congress  in  the 
case  of  Neflf  v.  Shanks.  And  see  Wyman  v.  Lemon,  51  CaL,  273.  A 
"  distinguishing  mark  "  upon  a  ballot  is  a  marking  or  embellishing  of 
the  ballot  which  will  distinguish  it  from  others  and  impart  knowledge 
of  the  person  who  voted  it.  A  mark  made  by  the  voter  in  scratching 
names  from  a  printed  ballot  and  substituting  others  is  not  a  distinguish- 
ing mark.  Wyman  v.  Lemon,  51  Cal,  273.  See  Applegate  v.  Eagan,  74 
Mo.,  258;  Coffey  r.  Edmonds,  58  CaL,  521;  Steele  v.  Calhoun,  61  Miss., 
556;  Oglesby  v.  Sigman,  58  Miss.,  503;  Opinion  of  Judges,  70  Me.,  566; 
[Shields  v.  McGregor,  91  Mo.,  534.  Under  a  statute  prohibiting  the  mark- 
ing of  an  oflScial  ballot  by  the  voter,  it  has  been  held  in  New  York  that 
where  marks  appear  on  such  ballots,  the  intent  with  which  the  marks 
were  made  cannot  be  proven  by  examining  the  individual  voters;  fur- 
ther, that  where  it  appears  that  a  conspiracy  has  been  entered  into  to  de- 
fraud, and  some  ballots  containing  a  specified  mark  are  shown  to  have 
been  cast  in  pursuance  of  such  conspiracy,  all  ballots  bearing  such  marks 
should  be  excluded  from  the  count  People  v.  Board  of  Canvassers,  18 
N.  Y.  Sup.,  302.  The  words  "For  Judge  of  Probate  Court,  Henry  H. 
Stedman,"  upon  a  ballot,  was  held  in  Connecticut  to  render  the  ballot 
void  where  no  election  was  being  held  at  the  time  for  a  probate  judge. 
Fields  u  Osborne,  60  Conn.,  544.] 

»rSec.  18,  Ch.  275,  Laws  N.  C,  1877.] 


CHAP.  XV.]  IMPERFECT   BALLOTS.  401 

committee  on  elections  in  the  House  of  Eepresentatives  of 
the  United  States,  in  the  case  of  Yeates  v.  Martin^  distin- 
guished the  language  of  this  statute  from  that  employed  in 
the  statute  of  Indiana,  and  held  that  in  ^N'orth  Carolina  the 
words  "  Republican  ticket "  on  the  inside  of  a  ballot  would 
render  the  ballot  void.] 

[§  5395.  Under  a  statute  of  Alabama  providing  that "  the 
ballot  must  be  .  .  .  without  any  figures,  marks,  rulings, 
characters  or  embellishments  thereon,"  it  was  held  in  the 
case  of  Lowe  v.  Wheeler^  that  the  use  of  the  words  "  1st 
District,"  "  2d  District,"  etc.,  upon  the  ballots  designating 
the  election  district  is  not  a  violation  of  the  law  and  such 
ballots  should  be  counted.] 

§  540.  There  are  also  in  some  of  the  States  laws  requir- 
ing that  the  voter  shall  indorse  on  the  outside  of  his  ballot 
the  name  of  the  office  voted  for.  These  statutes  are  gener- 
ally held  to  be  directory  only.  Thus,  in  People  v.  McManus ' 
it  was  held  that  a  ballot  indorsed  "  for  trustees  of  puhlio 
schools"  instead  of  common  schools  was  sufficient.  The  in- 
tention of  the  voter  must  control,  and  therefore  if  that 
intention  is  clearly  manifested  it  is  enough.*  And  it  was 
held  in  Wisconsin  that  where  the  description  or  designation 
of  the  office  on  a  ballot  is  applicable  to  two  or  more  offices, 
parol  evidence  is  admissible  to  show  which  of  them  was 
intended  by  the  voter.*  If  a  ballot  contains  the  names  of 
more  persons  than  are  to  be  voted  for  for  a  specified  office, 
it  is  void  as  to  that  office  and  must  be  rejected,*  but  is  good 
as  to  the  other  offices  named  on  it. 

1  [1  Ella,  384.] 

2  [2  Ells.,  61.] 

3  34  Barb.,  620. 

<  People  V.  Matteson,  17  111.,  167. 

»  State  V.  Goldthwait,  16  Wis.,  146.  And  see  State  v.  El  wood,  12  Wis., 
5r)3. 

^Inre  Contested  Election  School  Directors,  6  Phila.,  437;  Blockley 
Election,  3  Pars.,  534;  State  r.Tierney,  23  Wia,  430;  [State  r.  Foxworthy, 
29  Neb.,  341]. 
26 


403  ELECTI0X8.  [CHAI'.  XV. 

§  541.  But  where  a  ballot  contains  the  name  of  the  per- 
son voted  for  and  the  office  for  which  he  is  designated, 
several  times  repeated,  it  is  not  for  that  reason  void,  but  is 
to  be  counted  as  one  ballot.*  There  seems  to  be  no  reason 
why  a  ballot  containing  a  less  number  of  names  for  a  given 
office  than  the  number  to  be  chosen  should  not  be  counted 
for  those  who  are  designated.  If  three  Kepresentatives  in 
the  Legislature  are  to  be  chosen  by  the  voters  of  a  given 
county  or  district,  an  elector  may  vote  for  one,  or  for  two 
only,  if  he  chooses  to  do  so. 

§  542.  While  it  is  true  that  evidence  aliunde  may  be 
received  to  explain  an  imperfect  or  ambiguous  ballot,  it  does 
not  by  any  means  follow  that  such  evidence  may  be  received 
to  give  to  a  ballot  a  meaning  or  effect  hostile  to  what  it  ex- 
presses on  its  face.  The  intention  of  the  voter  cannot  be 
proven  to  contradict  the  ballot,  or  when  it  is  opposed  to  the 
paper  ballot  which  he  has  deposited  in  the  ballot-box.'  Thus, 
where  a  ballot  is  cast  which  has  upon  it  the  names  of  two 
persons  for  the  same  office,  proof  offered  to  show  that  the 
voter  intended  to  vote  for  the  one  or  the  other  of  them,  and 
not  for  both,  niust  be  rejected.'  Such  a  ballot  may  be  void, 
but  it  is  not  ambiguous,  and  therefore  cannot  be  helped  by 
parol  proof.* 

§  543.  It  very  often  happens  that  a  printed  ticket  is 
changed  by  the  voter  by  erasing  some  part  of  it,  or  by  writ- 
ing on  the  face  of  it,  or  by  both,  to  make  it  conform  to  his 
wishes.    A  ballot  is  to  be  construed  in  the  same  way  as  any 

1  People  V.  Holden,  28  Cal.,  124;  Ashfield's  Case,  Cush.  Elec.  Cas.,  58a 

2[Wigginton  v.  Pacheco,  1  Ells.,  5;  Apple  v.  Bancroft,  158111,649; 
State  V.  Steinborn  (Wis.),  66  N.  W.  Rep.,  798.  But  it  is  held  in  Arkansas 
that  a  voter  may  be  permitted  to  contradict  his  ballot  when  it  is  shown 
that  the  ballot  was  prepared  for  him  by  one  judge  instead  of  two,  as 
required  by  law.    Freeman  v.  Lazarus,  61  Ark.,  247.] 

'  People  V.  Seaman,  5  Den.,  409. 

*  See  McKinnon  v.  People,  110  IlL,  305.  [A  ballot  for  school  directors, 
cast  at  an  election  held  to  choose  one  director  for  a  long  term  and  one 
for  a  short  term,  cannot  be  counted  where  it  contains  the  names  of 
two  persons  without  anything  to  show  which  term  either  was  intended 
to  fill    Page  V.  Kuykendall,  161  IlL,  319.] 


CHAP.  XV.]  IMPERFECT   BALLOTS.  403 

other  written  or  printed  document,  and  the  construction 
must  be  such  as  to  give  effect  to  the  voter's  intent  if  that 
can  be  ascertained  from  the  face  of  the  ballot,  or,  in  some 
cases,  as  we  have  seen,  from  the  ballot  as  explained  by  evi- 
dence aliunde.  If,  therefore,  a  voter  has  written  upon  his 
ballot  the  name  of  a  particular  person  in  connection  with  the 
title  of  an  office,  and  omits  to  strike  out  the  name  of  another 
person  printed  upon  it  in  connection  with  the  same  office, 
the  writing  must  prevail,  and  the  vote  must  be  counted  for 
the  person  whose  name  is  written.  This  is  upon  the  ground 
that  the  writing  is  the  highest  evidence  of  the  voter's  in- 
tention.^ 

The  rule  that  what  is  written  upon  a  ballot  will  prevail 
over  what  is  printed  was  followed  by  the  Supreme  Court  of 
Minnesota  in  Newton  v.  Newell? 

§  544.  In  such  a  case  the  voter's  intention  can  be  clearly 
ascertained  from  the  face  of  the  ballot ;  there  is  no  ambiguity, 
and  therefore  evidence  aliunde  is  not  admissible  to  explain 
it,  and  the  Court  must,  in  such  a  case,  find,  as  matter  of  law, 
that  the  writing  on  the  face  of  the  ballot  prevails  over  the 
printing.^ 

§  545.  In  New  York,  since  the  decision  in  People  v. 
Sexton,  and  People  v.  Cooh,  supra,  it  has  been  considered  as 
settled  that  upon  the  trial  of  a  case  where  the  question  as  to 
who  was  elected  to  a  particular  office,  and  what  was  the 
intention  of  certain  ballots,  is  investigated  before  a  jury,  the 
court  and  jury  are  not  confined  to  the  narrow  limits  which 
control  boards  of  canvassers  who  have  no  power  to  take 

1  [People  V.  Pangburn,  14  Misc.  Rep.,  195;  Rutledge  v.  Crawford,  91 
CaL,  526;  Wallace  v.  McKlnley,  Mob.,  185;  Brown  v.  McCoUum,  76  Iowa, 
479.  But  where  the  statute  of  a  State  provides  that,  if  more  persons 
are  designated  for  an  oflSce  than  there  are  candidates  to  be  elected, 
such  part  of  the  ticket  shall  not  be  counted,  the  statute  will  govern; 
and  if  the  voter  fails  to  erase  the  printed  name  of  a  candidate  and 
writes  under  it  the  name  of  another  person  for  the  same  oflSce,  the  bal- 
lot cannot  be  counted  for  either.    Blankenship  v.  Israel,  182  111.,  514] 

2  26  Minn.,  529. 

3  The  People  v.  Saxton,  33  N.  Y.,  8  Smith,  309. 


404  ELECTIONS.  [chap.  XV. 

evidence  aliunde  the  ballot  itself.  Such  boards  cannot,  but 
courts  and  juries  can,  hear  and  consider  evidence  for  the 
purpose  of  elucidating  any  apparent  ambiguity  on  the  face 
of  a  ballot,  or  any  apparent  incongruity  between  it  and  the 
surrounding  circumstances.  And  it  has  accordingly  been 
held  that  the  placing  of  a  "  paster"  containing  one  name  over 
another  name  on  a  ticket  indicates  an  intention  to  substitute 
one  name  for  another.^  If  it  be  placed  over  another  name 
which  is  under  the  title  of  an  office,  it  indicates  an  intention 
to  substitute  for  that  office  the  name  upon  the  paster.  If  it 
be  done  in  such  a  manner  as  to  afford  any  ground  for  doubt 
whether  the  voter  intended  to  designate  two  persons  for  the 
same  office,  that  doubt  may  be  safely  left  to  be  solved  by  a 
jury,  in  view  of  all  the  facts,  the  appearance  of  the  ballot  and 
the  surrounding  circumstances.  And  in  cases  where  there 
is  doubt  as  to  the  intention  of  the  voter,  because  of  some  ap- 
parent ambiguity  on  the  face  of  the  ballot,  it  is  error  for  the 
court  to  reject  proper  evidence  offered  to  explain  the  am- 
biguity, and  to  instruct  the  jury,  as  matter  of  law,  that  such 
ballot  cannot  be  counted.^ 

§  546.  "Where  a  pen  or  pencil  mark  is  drawn  over  a  name 
which  has  been  printed  on  a  ballot,  it  will  be  presumed  that 
an  erasure  of  the  name  was  intended,  although  it  be  still 
legible,  unless  the  contrary  is  shown.  It  is  not  necessary  to 
obliterate  the  name  entirely.  And  where  the  inspectors 
have  rejected  such  a  ballot  on  the  ground  that  the  name  was 
erased,  and  where  the  ballot  itself  is  not  in  evidence,  the  cor- 
rectness of  the  decision  of  the  inspectors  will  be  presumed.' 

§  647.  Where  the  Constitution  declares  that  aU  ballots 
shall  be  "  fairly  written,"  a  jprinted  ballot  is  good.*  The 
term  "  written  "  is  held  to  include  what  is  printed,  following 
the  definition  of  that  term  as  given  by  the  best  lexicog- 

1  [Frederick  t?.  Wilson,  Mob.,  401;  De  Walt  v.  Bentley,  146  Pa.  St.» 
629.J 

2  The  People  v.  Love,  63  Barb.,  535. 
»  Adams  v.  Wilson,  CL  &  H.,  373. 

<  Temple  v.  Mead,  4  Vt,  535,  541;  Henshaw  v,  Foster,  9  Pick.,  312. 


CHAP.  XV.]  IMPERFECT  BALLOTS.  405 

raphers,  viz. :  "  to  express  by  means  of  letters."  ^  Ko  doubt 
to  the  common  understanding  the  term  "  written  "  conveys 
the  idea  of  forming  letters  into  words  with  a  pen  or  pencil ; 
but  to  give  it  this  meaning  in  this  connection  would  be  to 
sacrifice  the  spirit  for  the  sake  of  the  letter.  "  The  letter 
killeth,  but  the  spirit  maketh  alive,"  is  the  forcible  expres- 
sion of  Scripture. 

§  548.  The  Constitution  of  Indiana  provides  that  "  all 
elections  by  the  people  shall  be  by  ballot."  A  statute  of 
that  State,  passed  in  1869,  provides  that  "it  shall  be  the 
duty  of  the  inspector  of  any  election,  etc.,  on  receiving  the 
ballot  of  any  voter,  to  have  the  same  numbered  with  figures 
on  the  outside  or  back  thereof,  to  correspond  with  the  num- 
ber placed  opposite  the  name  of  such  voter  on  the  poll  list, 
kept  by  the  clerk  of  said  election."  The  question  of  the 
validity  of  this  statute  came  before  the  Supreme  Court  of 
Indiana  in  the  case  of  Williams  v.  Stein?  The  case  pre- 
sented squarely  the  question  whether  under  a  Constitution 
guaranteeing  to  every  voter  the  right  to  vote  at  all  elections 
by  the  people,  by  hallotj  it  is  competent  for  the  Legislature 
to  provide  for  numbering  the  ballots  in  such  manner  as  to 
destroy  their  secrecy.  The  court  held  the  statute  to  be  un- 
constitutional and  void.  Upon  an  elaborate  review  of  the 
authorities,  the  conclusion  is  reached,  upon  what  seems  to  be 
good  ground,  that  in  this  country  the  ballot  implies  absolute 
and  inviolable  secrecy,  and  that  this  doctrine  is  founded  in 
the  highest  considerations  of  public  policy.  That  the  term 
"  ballot "  implies  secrecy,  and  that  this  mode  of  voting  was 
adopted  mainly  to  enable  each  voter  to  keep  secret  his  vote, 
is  clear.' 

1  [So,  also,  a  written  ballot  should  not  be  rejected  where  the  statute 
requires  a  printed  ballot.  State  v.  Van  Camp,  36  Neb.,  91.  Contra,  State 
V.  McElroy,  44  La.,  796.] 

2  38Ind.,  89. 

3  Gushing  on  Leg.  Assemblies,  §  103;  May's  Constitutional  History  of 
England,  Vol.  1,  p.  353;  People  v.  Pease,  27  N.  Y.,  45;  Cooley's  Const 
Lim.,  604;  Temple  v.  Mead,  4  Vt,  535;  Leadbetter  v.  Hall,  62  Mo..  422. 


406  ELECTIONS.  [chap.  XV. 

§  649.  A  statute  of  Indiana  provided  that  in  an  election 
to  determine  the  question  whether  a  county  subscription 
should  be  made  to  aid  in  constructing  a  railroad,  the  form  of 
an  affirmative  ballot  should  be  "  for  the  railroad  appropria- 
tion." At  an  election  held  under  this  statute,  ballots  were 
cast  which  had  printed  or  written  upon  them  only  the  words 
"  for  the  railroad."  This  was  held  to  be  an  irregularity 
which  would  not  affect  the  election.^ 

[§  549<z.  A  statute  of  Missouri  ^  provides  that  the  caption 
of  every  ballot  shall  express  its  political  character,  and  shall 
not  be  designed  to  mislead  the  voter  as  to  the  name  or  names 
thereunder.  Construing  this  statute,  the  Supreme  Court  of 
Missouri  has  held  that  a  ballot  headed  "  Democratic  State, 
Congressional  and  Senatorial,  and  Independent  Judicial  and 
County  Ticket "  was  not  void,  and  could  not  be  rejected  on 
account  of  its  form.^  Under  an  earlier  and  similar  statute 
it  was  held,  by  the  same  court,  that  the  heading  "Eepublican 
Independent  Greenback  "  was  not  misleading  as  a  matter  of 
law,  but  whether  it  was  misleading  should  be  determined  as 
a  fact  from  the  evidence.]  * 

1  Railroad  Ca  v.  Bearss,  39  Ind.,  598. 

2  [Sec.  4671,  Rev.  Stat.  1889.] 

'[Shields  v.  McGregor,  91  Mo.,  534.  See,  also,  Applegate  v.  Egan,  74 
Mo.,  258;  RoUer  v.  Truesdale,  26  Ohio  St,  586.] 

*  [Turner  v.  Drake,  71  Mo.,  285.  See,  also,  Sessinghaus  v.  Frost,  2  Ells., 
381.] 


CHAPTEE  XYL 

VIOLENCE  AND  INTIMIDATION. 

§  550.    Fairness,  purity  and  freedom  of  elections  must  not  be  interfered 
with. 

550,  551.    Slight  disturbances  will  not  vitiate  election. 

551.  Rule  stated. 

553.    Interference  by  the  military. 

553.  Surrounding  polls  by  military  force. 

554.  Stationing  troops  in  the  vicinity  of  the  election. 
555-557.    Misconduct  of  soldiers  stationed  near  voting  place. 

558,  559.  Duty  of  House  of  Representatives  to  inquire  into  charges 
of  intimidation. 

560,  561.  Violence  and  intimidation  affecting  a  part  only  of  the  dis- 
trict in  which  the  election  was  held. 

560a.  Burden  of  proof  where  intimidation  is  shown. 

562-564.    General  rules  upon  the  subject  stated. 

565.  It  must  be  shown  that  the  violence  and  intimidation  affected 

result. 

566.  Evidence  of  intimidation. 

567.  Importance  of  preserving  freedom  of  elections. 

568.  Calling  out  militia  on  election  day. 

§  550.  If  it  clearly  appear  that  the  fairness,  purity  or 
freedom  of  an  election  has  been  materially  interfered  with 
by  acts  of  violence,  intimidation  or  armed  interference,  such 
election  should  be  set  aside.  Slight  disturbances  frequently 
occur,  and  are  often  sufficient  to  alarm  a  few  of  the  more 
timid,  without  materially  affecting  the  result  or  the  freedom 
of  the  election.  The  true  rule  is  this :  The  violence  or  in- 
timidation should  be  shown  to  have  been  sufficient  either  to 
change  the  result,  or  that  by  reason  of  it  the  true  result  can- 
not be  ascertained  with  certainty  from  the  returns.  To  va- 
cate an  election  on  this  ground,  if  the  election  were  not  in 
fact  arrested,  it  must  clearly  appear  that  there  was  such  a 


4:08  ELECTIONS.  [chap.  XVL. 

display  of  force  as  ought  to  have  intimidated  men  of  ordi- 
nary firmness.^ 

§  551.  In  Harrison  v.  Davis  the  committee  say  in  their 
report:  "It  (the  specification)  nowhere  makes  the  formal 
allegation  that  the  law  requires,  either  that  the  election  was 
arrested  and  broken  up  in  every  ward,  or  that  so  many  in- 
dividuals were  excluded  by  violence  and  intimidation  as 
would,  if  allowed  to  vote,  have  given  the  contestant  the  ma- 
jority. Either  of  these  grounds,  if  stated  and  proved,  would 
have  been  in  law  decisive  of  the  case,  but  neither  is  stated 
in  the  specification,  and  neither  is  proved  by  the  evidence." 

The  case  of  Bruce  v.  Loan  arose  in  Missouri  in  the  early 
part  of  the  war  of  the  rebellion  (1862),  and  the  allegation 
was  that  the  election  in  many  places  was  controlled,  and 
large  number  of  voters  overawed,  by  the  "  enrolled  militia," 
a  State  military  organization  which  had  been  raised  and 
armed  for  military  service.  There  was  much  dispute  about 
the  facts,  but  both  the  majority  and  the  minority  of  the 
committee  appear  to  have  conceded  the  correctness  of  the 
general  rule  of  law  laid  down  in  Harrison  v.  Davis. 

§  552.  There  can,  however,  be  no  doubt  but  that  the  law 
looks  with  great  disfavor  upon  anything  like  an  interference 
by  the  military  with  the  freedom  of  an  election.  An  armed 
force  in  the  neighborhood  of  the  polls  is  almost  of  necessity 
a  menace  to  the  voters,  and  an  interference  with  their  free- 
dom and  independence,  and  if  such  armed  force  be  in  the 
hands  of  or  under  the  control  of  the  partisan  friends  of  any 
particular  candidate  or  set  of  candidates,  the  probability  of 
improper  influence  becomes  still  stronger.  And  although 
the  fact  that  an  armed  force  was  stationed  at  or  near  the 
polls  will  not,  of  itself,  vitiate  an  election  in  the  absence  of 
proof  that  it  did  in  fact  deter  from  voting  a  portion  of  the 
electors  sufficiently  large  to  change  or  render  doubtful  the 

1  Harrison  v.  Davis,  1  Bart.,  341;  Bruce  v.  Loan,  Id.,  482;  Bromberg  v. 
Haralson,  44th  Cong.  [Smith,  355];  Tarbox  v.  Sughrue,  86  Kan.,  325;  13 
Paa  Rep.,  935.  [To  invalidate  an  election  upon  the  ground  of  intimida^ 
tion,  the  burden  is  upon  the  assailant  to  show  that  voters  were  kept 


CHAP.  XVI.]  VIOLENCE   AND   INTIMIDATION.  409 

result,  yet  in  such  a  case  it  would  not  be  necessary  to  show 
that  the  electors  who  declined  to  vote  would  have  been  in 
actual  danger  if  they  had  attempted  to  do  so.  If  it  be  made 
to  appear  that  there  was  an  armed  force  at  the  polls,  and 
that  a  number  of  voters  sufficiently  numerous  to  affect  the 
result  or  render  it  doubtful  considered  the  presence  of  such 
force  so  menacing  to  them  as  to  render  it  unsafe  for  them 
to  vote,  and  that  they  had  reasonable  cause  so  to  think,  and 
if  for  this  reason  they  declined  to  go  to  the  polls,  the  election 
ought  to  be  set  aside. 

§553.  In  Giddings  Y.  ClarJc^  2i  contested  election  case 
tried  by  the  United  States  House  of  Representatives  of  the 
Forty-second  Congress,  the  following  facts  were  shown  in 
relation  to  the  election  in  the  county  of  Limestone : 

"  The  colored  voters  generally  failed  to  vote,  so  that  only 
twenty-eight  votes  were  cast  for  Clark,  to  one  thousand  one 
hundred  and  fifty-three  for  Giddings.  That  a  state  of  ex- 
citement and  fear  existed  in  this  county  about  the  time  of 
the  election  is  clear.  A  collision  occurred  between  some 
colored  policemen  and  certain  white  men,  which  resulted  in 
the  death  of  one  of  the  latter,  and  the  wounding  of  one  of 
the  former.  This  produced  great  excitement,  and  was  fol- 
lowed by  a  general  uprising  and  arming  of  both  whites  and 
blacks.  On  the  day  of  election,  the  town  where  the  election 
was  held  was  occupied  by  an  armed  force  under  command 
of  one  Captain  Richardson.  Pickets  were  stationed  on  all 
the  roads  leading  into  town,  and  persons  coming  in  to  vote 
were  obliged  to  obtain  a  pass  from  the  military  authorities. 
Although  the  witnesses  say  that  all  voters  were  permitted 
to  come  and  go  in  peace,  and  that  the  freedmen  were  urged 
to  vote,  yet  it  is  clear  that  they  abstained  from  doing  so 
for  reasons  which  most  men  would  consider  good  and  suffi- 
cient." 

from  voting  or  compelled  to  vote  otherwise  than  they  would.    Mere 
noise,  confusion  or  threats  will  not  suflSce.    State  v.  Calvert,  98  N.  C, 
580.] 
I  [Smith,  91.] 


410  ELECTIONS.  [chap.  XVI. 

The  committee  were  of  the  opinion  that  this  was  not  a 
free  and  fair  election,  and  so  reported  to  the  House.  The 
correctness  of  this  decision  cannot  be  doubted.  Where  the 
polls  are  surrounded  by  a  military  force,  and  voters  required 
to  pass  pickets,  and  procure  permission  of  military  authori- 
ties, in  order  to  approach  them,  there  can  be  no  free  election. 
It  is  no  answer  to  this  to  say  that  the  military  are  stationed 
around  the  polls  to  preserve  the  peace  and  secure  freedom 
to  all  voters. 

§  554.  A  case  may  perhaps  arise  where  it  will  not  be 
improper  to  station  troops  in  the  vicinity  of  the  election, 
at  a  place  where  they  can  be  called"upon  in  case  of  emer- 
gency to  suppress  riot  or  prevent  bloodshed,  but  in  all  such 
cases  the  troops  should  be  removed  from  the  actual  presence 
of  the  voters,  and  should  not  be  permitted  in  any  manner  to 
interfere  with  persons  going  to  or  returning  from  the  polls. 
We  have  inherited  from  our  British  ancestors  a  strong  aver- 
sion to  interference  b}''  the  military  power  with  the  conduct 
of  elections,  and  this  feeling  has  been  heightened  by  the  long 
enjoyment  in  this  country  of  the  larger  liberty  of  American 
citizenship.  As  early  as  1741  an  attempt  was  made  to  inter- 
fere with  an  election  held  for  the  city  of  Westminster,  by 
stationing  a  body  of  armed  soldiers  near  the  poll.  On  this 
being  shown  to  the  House  of  Commons,  it  was  by  that  body 
resolved  "  that  the  presence  of  a  regular  body  of  armed  sol- 
diers at  an  election  of  members  to  serve  in  Parliament  is  a 
high  infringement  of  the  liberties  of  the  subject,  a  manifest 
violation  of  the  freedom  of  elections,  and  an  open  defiance 
of  the  laws  and  constitution  of  this  kingdom."  In  some  of 
the  States  there  are  statutes  prohibiting  the  employment  of 
troops,  or  their  presence,  at  any  place  of  election  during  the 
time  of  such  election.  Such  a  statute  was  enacted  in  Penn- 
sylvania as  early  as  1803.^ 

§  555.  In  the  early  case  of  Trigg  v.  Preston,  in  the  House 
of  Eepresentatives  of  the  Third  Congress  (1T93),  the  ques- 
tion arose  whether  the  presence  of  a  part  of  the  military 

1 4  Smith's  Laws,  101. 


CHAP.  XVI.]  VIOLENCE   AND   INTIMIDATION.  411 

force  of  the  United  States  at  the  polls,  and  certain  disor- 
derly and  improper  conduct  of  theirs,  was  sufficient  to  vitiate 
the  election.  The  facts  were  as  follows:  A  brother  of  the 
sitting  member  was  the  commander  of  a  company  of  Federal 
troops,  which  was  quartered  near  the  voting  place.  On  the 
day  of  the  election  the  said  troops  were  marched,  in  a  body, 
twice  or  three  times  around  the  court-house,  where  the  elec- 
tion was  held,  and  paraded  in  front  of  and  close  to  the  door 
thereof.  The  troops  were  allowed  to  vote  and  voted  gener- 
ally in  favor  of  the  sitting  member,  but  their  votes  were 
thrown  out  by  the  returning  officers.  Some  of  them  threat- 
ened to  beat  any  person  who  should  vote  in  favor  of  the  con- 
testant. One  of  the  soldiers  struck  and  knocked  down  a 
magistrate  who  was  attending  at  said  election.  Three  sol- 
diers stood  at  the  door  of  the  court-house,  and  refused  to 
admit  a  voter  because  he  declared  he  would  vote  for  contest- 
ant. There  were  altercations  between  the  soldiers  and  the 
people,  which  terminated  after  the  jpoll  was  closed  in  a  vio- 
lent affray.  Upon  these  facts  the  committee  found  and  "re- 
ported that  the  conduct  of  the  soldiers  as  well  as  that  of  their 
commander  "  was  inconsistent  with  that  freedom  and  fair- 
ness which  ought  to  prevail  at  elections ;  and  that  although 
it  does  not  appear,  from  any  other  than  hearsay  testimony, 
that  any  voter  was  actually  prevented  from  voting,  yet  there 
is  every  reasonable  ground  to  believe  that  some  were,  and 
that  the  election  was  unduly  and  unfairly  biased  by  the  tur- 
bulent and  menacing  conduct  of  the  military."  ^  The  report 
of  the  committee  was  lost  in  the  House.  It  may  be  conceded 
that  the  facts  in  that  particular  case  did  not  constitute  such 
violence  and  intimidation  as  should  have  vitiated  the  poll, 
and  still  the  rule  we  have  stated  remains  well  settled.  If 
this  case  did  not  fall  within  the  rule  it  was  because  it  did  not 
appear  that  the  presence  and  conduct  of  the  soldiery  actually 
deterred  from  voting  a  number  of  legal  voters  sufficiently 
numerous  to  change  or  render  uncertain  the  result. 

ICL&H.,  7a 


412  ELECTIONS.  [chap.  XVI. 

§  556.     We  conclude  — 

1.  That  an  armed  force  should  never  be  stationed  imme- 
diately at  the  polls. 

2.  That  in  cases  where  riot  and  bloodshed  are  appre- 
hended, troops  may  be  stationed  in.  the  neighborhood,  if  so 
ordered  by  competent  authority,  with  a  view  to  keep  the 
peace  and  suppress  such  violence  as  is  beyond  the  power  of 
the  local  peace  oflBcers  or  courts  to  control. 

3.  That  in  all  cases  where  it  is  alleged  that  armed  soldiers 
have  interfered  with  the  freedom  of  an  election,  either  by  their 
presence  or  their  conduct,  or  both,  all  the  facts  are  to  be  con- 
sidered, and  the  question  is  whether,  by  reason  of  the  action 
of  such  armed  soldiers,  legal  voters  have,  for  sufficient  cause, 
felt  themselves  obliged  to  abstain  from  voting  in  numbers 
so  large  that  if  they  had  voted  it  would  have  changed  the 
result  or  rendered  it  uncertain. 

§  557.  In  the  case  of  Bromherg  v.  Haralson^  the  House 
of  Kepresentatives  held  that  the  stationing  a  small  squad  of 
soldiers  in  the  neighborhood  of  an  election  did  not  justify  a 
rejection  of  the  poll,  where  there  was  no  threatening  con- 
duct on  their  part  and  no  evidence  of  actual  intimidation. 

§  558.  In  the  case  of  Biddle  (&  Richard  v.  Wing^  the 
committee  of  elections  of  the  House  of  Representatives  ex- 
pressed the  opinion  that  it  was  not  the  duty  of  the  House 
"  to  inquire  into  the  causes  which  may  have  prevented  any 
candidate  from  getting  a  sufficient  number  of  votes  to  entitle 
him  to  the  seat."  They  considered  that  the  duty  of  the 
House  was  to  inquire,  and  if  possible  ascertain,  "  who  had  the 
greatest  number  of  legal  votes  actually  given  at  the  election." 
And  accordingly  the  committee  held  that  they  could  not 
inquire  into  the  truth  of  the  allegation  of  one  of  the  con- 
testants, who  did  not  claim  to  have  received  the  greatest 
number  of  votes  actually  cast,  but  alleged  that  "  he  would 
have  received  the  greatest  number  of  votes  had  not  his 
friends,  at  the  election  holden  in  the  city  of  Detroit,  been 

1 44th  Cong.  [Smith,  355]. 
'CLifcH.,  504,  506.  507. 


OHAP.  XVI.]  VIOLENCE  AND  INTIMIDATION.  413 

intimidated  from  voi/ing^^  etc.  This  report  was  never  acted 
upon  by  the  House,  and  therefore  is  without  its  sanction, 
and  depends  for  its  force  as  a  precedent  solely  upon  the  com- 
mittee's recommendation. 

It  can  hardly  be  said  to  state  the  doctrine  upon  the  sub- 
ject with  completeness  or  accuracy.  Intimidation  of  voters 
may  always  be  shown,  and  allegations  and  proof  upon  this 
subject  should  always  be  heard.  It  must,  however,  in  the 
nature  of  things,  be  a  rare  case  in  which  the  votes  of  per- 
sons prevented  from  voting  by  violence  or  intimidation  can 
be  counted  for  one  or  the  other  candidate  as  if  actually  cast. 
In  order  that  a  vote  not  cast  shall  be  counted  as  if  cast,  it 
must  appear  that  a  legal  voter  offered  to  vote  a  particular 
ballot,  and  that  he  was  prevented  from  doing  so  by  fraud, 
violence,  or  an  erroneous  ruling  of  the  election  oflBcers. 
Just  what  is  to  be  understood  by  offering  to  vote  is  not  per- 
haps perfectly  well  settled.  If  a  voter  approaches  or  at- 
tempts to  approach  the  polls  for  the  purpose  of  depositing 
his  ballot,  and  is  driven  away,  or  by  violence,  intimidation 
or  threats  prevented  from  the  actual  presentation  of  his 
ballot  to  the  proper  oflBcer,  and  if  he  used  proper  diligence 
in  endeavoring  to  reach  the  polls  and  deposit  his  ballot,  and 
was  not  intimidated  without  sufficient  reason,  the  better 
opinion  seems  to  be  that  his  vote  may  be  counted.^  But  of 
course  voters  who  do  not  present  themselves  at  the  polls  and 
offer  their  ballots,  or  who  do  not  attempt  to  go  to  the  polls 
at  all,  or  attempting,  fail,  without  reasonable  cause,  cannot 
in  any  case  ask  that  their  votes  be  counted.'^ 

§  559.  But  there  is  another  ground  upon  which  it  is,  in 
such  a  case,  proper  to  offer  proof  of  intimidation  and  vio- 
lence, and  that  is  to  the  end  that  the  House  may  deter- 
mine whether  there  has  been  a  free  and  fair  election.  For 
if,  by  this  means,  legal  voters  have  been  deprived  of  their 
right  to  vote  in  numbers  sufficient  to  change  the  result,  the 
election  may  be  set  aside.     In  the  report  just  referred  to, 

1  [Bisbee  v.  Finley,  2  Ells.,  173.] 

2  Newcum  v.  Kirtley,  13  B.  Monroe,  515k 


414  ELECTIONS.  [chap.  XVI. 

the  committee  concede  that  there  may  be  a  case  in  which 
"  fraud  and  corruption  should  appear  sufficient  to  destroy 
all  confidence  in  the  purity  and  fairness  of  the  whole  pro- 
ceeding." And  it  is  very  clear  that  if  in  the  course  of  an  in- 
vestigation it  should  become  apparent  that  there  was  intimi- 
dation and  violence  sufficient  to  destroy  the  election,  it  would 
be  the  duty  of  the  House  to  declare  it  void,  even  though  no 
party  to  the  contest  has  formally  alleged  that  it  was  so.  If 
the  allegation  be  as  in  the  case  of  Biddle  and  Richard  v. 
Wing,  supra,  that  enough  of  the  friends  of  a  contestant 
were  deterred  from  voting  by  violence  and  intimidation  to 
have  elected  him,  if  they  had  been  allowed  to  vote,  as  was 
their  right,  yet,  if  the  evidence  shows  that  the  election 
should  be  set  aside,  the  House  will  not  stop  short  of  its  duty 
for  want  of  an  allegation  that  the  election  was  fraudulent 
and  void.  A  court  of  justice  might  be  so  hampered  by  the 
rules  of  pleading  as  to  be  unable  to  grant  any  relief  beyond 
that  prayed  for,  but  the  House  of  Kepresentatives  is  not. 

§  560.  In  saying  that  upon  sufficient  proof  of  violence 
and  intimidation  an  election  may  be  set  aside,  we  mean,  of 
course,  that  the  particular  poll  or  polls  where  such  violence 
occurs  shall  be  thrown  out  of  the  count.^  "Whether  in  a 
case  where  a  number  of  counties  or  precincts  vote  for  the 
same  officer,  and  a  portion  of  them  are  rejected  for  this 
cause,  the  entire  election  is  to  be  held  void,  is  often  a  ques- 
tion of  difficulty.  It  is  very  clear  that  if  the  violence  has 
prevented  a  large  proportion  of  the  electors  in  the  whole 
district  from  participating,  the  election  is  void,  and  it  is  also 
clear  that  if  only  a  small  part  of  the  district  was  disturbed 
by  it,  so  that  the  great  body  of  the  electors  have  had  a  fair 
opportunity  to  vote,  then  the  election  must  stand,  unless  it 
can  be  shown  that  but  for  the  violence  the  result  would  have 
been  different.  The  difficulty  arises  in  cases  where  the  in- 
fected part  of  the  district  is  neither  so  large  as  to  make  it 
clear  that  the  election  is  void,  nor  so  small  as  to  make  it 
clear  that  the  election  is  not  void.    Each  case  of  this  char- 

1  [Smalls  V.  EUiott,  Mob.,  663.] 


CHAP,  XVI.]  VIOLENCE    AND   INTIMIDATION.  415 

acter  must  be  determiaed  by  the  circumstances  surrounding 
it,  and  with  a  view  to  promote  the  ends  of  justice.  Much 
will,  of  course,  depend  upon  the  relative  vote  of  the  several 
candidates  outside  of  the  infected  districts,  because  if  any 
one  has  a  very  large  majority  in  the  peaceable  localities,  and 
the  vote  of  the  infected  precincts  is  not  large,  there  will  be 
less  probability  that  the  result  has  been  achieved  because  of 
the  violence ;  while,  on  the  other  hand,  if  the  vote  of  the 
peaceable  precincts  is  very  close,  the  rejection  of  a  small 
district  for  violence  might  be  regarded  as  fatal  to  the  elec- 
tion. In  a  word,  if  it  is  apparent  that  to  accept  the  result 
as  shown  by  the  peaceable  precincts  would  be  to  allow  the 
minority  to  choose  the  officer,  then  the  election  is  to  be  held 
void. 

[§  560a.  It  has  been  decided  in  the  House  of  Eepresent- 
atives  that  where  intimidation  is  shown  to  have  been  re- 
sorted to,  the  burden  of  proof  is  upon  the  person  charged 
with  receiving  the  benefits  of  the  intimidation  to  show  that 
the  violation  of  law  did  not  affect  the  result.]  ^ 

§  561.  It  was  laid  down  by  the  committee  of  elections  of 
the  Forty-first  Congress,  in  several  cases,  that  violence  and 
intimidation  in  some  of  the  precincts  does  not  invalidate  the* 
election  in  those  which  are  peaceable.^ 

But  thus  broadly  stated  this  is  not  a  sound  rule.  This  will 
be  apparent  upon  a  moment's  reflection.  Suppose  there  are 
ten  counties  in  a  Congressional  district,  and  there  is  in  nine 
of  them  such  violence  at  the  polls  as  to  destroy  the  fairness 
and  freedom  of  the  election ;  can  it  be  claimed  that  the  one 
peaceable  county  should  choose  a  representative  for  the  ten  ? 
Clearly  not.  The  true  principle  is,  that  if  the  great  body  of 
the  electors  are  prevented,  without  their  fault,  from  partici- 
pating in  an  election,  it  is  not  a  valid  election.  "Where  the 
majority  voluntarily  remain  away  from  the  polls,  the  minor- 
ity, however  small,  who  do  vote,  may  elect,  but  not  so  where 

1  [Hurd  V.  Romeis,  Mob.,  429.] 

-Hunt  V.  Sheldon,  2  Bart.,  530-703;  Syplier  v.  St.  Martin,  Id.,  699;  Wal- 
lace V.  Simpson,  Id.,  731;  Darrall  v.  Bailey,  Id.,  754 


416  ELECTIONS.  [chap.  XVI. 

the  majority  are  kept  from  the  polls  by  violence  and  intimi- 
dation. 

§  562.  The  rule  laid  down,  in  the  cases  just  cited,  cannot 
be  said  to  have  received  the  unqualified  sanction  of  the  House 
of  Representatives,  though  in  some  of  the  cases  the  recom- 
mendations of  the  committee  were  adopted.  The  House  soon 
found  that  under  the  operation  of  the  rule  persons  were 
likely  to  be  seated  in  that  body  who  were  not  the  choice  of 
the  majority.  In  the  case  of  Syjpher^  supra^  the  report  of 
the  committee,  which  was  based  upon  this  rule  entirely,  was 
overruled,  and  the  election  declared  to  be  null  and  void,  for 
the  reason,  as  we  learn  from  the  debate,  that  the  parishes  re- 
jected for  violence  contained  a  majority  of  the  voters  of  the 
district.  The  case  of  Hunt  v.  Sheldon,  supra,  is  regarded 
as  the  leading  case  favoring  the  rule,  but  it  was  claimed  by 
some,  at  least,  of  the  members  who  voted  for  that  report,  that 
notwithstanding  the  violence  there  was  a  peaceable  election 
in  the  larger  and  more  populous  portions  of  the  district.  In 
the  course  of  the  debate  in  Sypher's  case,  Mr.  Garfield,  of 
Ohio,  explained  his  vote  in  Sheldon's  case,  as  follows: 

"  Mr.  Garfield,  of  Ohio.  When  the  case  of  Hunt  v.  Shel- 
don was  before  the  House  I  stated  the  ground  on  which  I 
acted.  It  was  that  in  nine  hundred  and  ninety-nine  parts, 
out  of  one  thousand  of  the  territory  embraced  by  the  dis- 
trict, there  was  no  disturbance,  and  among  the  majority  of 
the  population,  as  exhibited  by  the  census  report,  there  was 
no  disturbance.  I  considered,  therefore,  that  a  very  large 
proportion  of  the  territory,  and  a  majority  of  the  popula- 
tion of  the  district,  had  a  peaceable  election,  and  that,  there- 
fore, we  should  not  throw  the  election  out." 

And  it  is  manifest,  not  only  from  the  debate,  but  from  the 
action  of  the  House  in  voting  down  the  report  in  Sypher's 
case,  that  the  decision  in  Sheldon's  case  was  not  intended  as 
an  indorsement  of  the  doctrine  that  the  peaceable  precincts 
may  elect,  without  regard  to  their  number  or  population. 

§  563.  It  was  claimed  by  those  who  sustained  the  rule 
as  it  was  laid  down  by  the  committee  in  Sheldon's  case,  that 
it  was  necessary  for  the  protection  of  the  freedmen  of  the 


CHAP.  XVI.]  VIOLENCE   AND   INTmiDATION.  417 

South,  who  were,  as  it  was  claimed,  "  peculiarly  exposed  to 
violence  and  intimidation  by  the  former  master  class,  prone 
by  habit  and  inclination  to  domineer  over  their  former 
slaves."  It  may  be  hoped  that  the  very  anomalous  condi- 
tion of  things  which  existed  in  that  region  at  the  time  of  the 
elections,  which  gave  rise  to  the  reports  under  considera- 
tion, was  transient,  and  has  already  or  will  soon  pass  away 
forever.  At  all  events,  it  is  by  no  means  safe  to  establish  a 
rule  applicable  to  all  cases  and  for  all  time,  and  capable  of 
incalculable  mischief  in  its  general  and  universal  application, 
in  order  to  provide  for  a  few  exceptional  and  extraordinary 
cases.  Nor  can  it  be  conceded  that  this  rule  was  necessary, 
even  for  the  protection  of  the  freedmen.  The  best  protection 
against  violence  is  the  enactment  and  enforcement  of  laws 
for  its  punishment.  Beyond  this,  it  is  enough  that  the  com- 
munity in  which  it  occurs  to  such  an  extent  as  to  prevent 
the  holding  of  free  and  fair  elections  should  go  unrepre- 
sented, and,  if  need  be,  suffer  the  rigors  of  military  rule,  until 
they  decide  to  obey  the  laws  and  appreciate  the  blessings  of 
freedom  for  themselves  and  for  all  others. 

§  564.  It  would  seem,  therefore,  that  the  following  rules, 
if  administered  in  the  light  of  the  general  principles  which 
have  now  been  stated,  will  afford  a  safe  guide : 

1.  If  the  violence  and  intimidation  has  been  so  extensive 
and  general  as  to  render  it  certain  that  there  has  been  no 
fair  and  free  expression  by  the  great  body  of  the  electors, 
then  the  election  must  be  set  aside,  notwithstanding  the  fact 
that  in  some  of  the  precincts  or  counties  there  was  a  peace- 
able and  fair  election. 

2.  Where  there  has  been  an  election,  embracing  a  number 
of  counties  or  precincts,  in  which  there  has  been  violence 
and  intimidation  enough  to  exclude  from  the  count  one  or 
more  precincts  or  voting  places,  but  not  enough  to  destroy 
the  freedom  and  fairness  of  the  election  as  a  whole,  such 
violence  will  not  invalidate  the  election,  nor  affect  the  result 
of  it,  unless  it  be  shown  affirmatively  that  but  for  it  the 
result  would  have  been  different. 

27 


^18  ELECTIONS.  [OHAP.  XVI. 

3.  The  question  in  each  case  must  be,  has  the  great  body 
of  the  electors  had  an  opportunity  to  express  their  choice 
through  the  medium  of  the  ballot  and  according  to  law,  and 
this  question  must  be  decided  in  the  light  of  all  the  facts  and 
circumstances  shown  in  the  evidence.  If  some  of  the  pre- 
cincts or  voting  places  are  necessarily  thrown  out  of  the 
count  because  of  unlawful  disturbances  or  violence,  it  will 
be  necessary  to  determine  from  the  evidence  whether  their 
exclusion  necessarily  destroys  the  fairness  and  freedom  of 
the  election  as  a  whole.^ 

§  565.  It  was  held  in  State  v.  Mason^  that  a  petition 
which  demanded  that  an  election  be  set  aside  because  of 
violence  and  intimidation  at  the  polls  must  allege  that  a 
suiScient  number  of  voters  were  prevented  from  voting  to 
have  varied  the  result  of  the  election.  The  Court  observes: 
"  It  is  evident  there  would  be  no  reason  to  contest  an  elec- 
tion if  the  result  could  not  be  changed,  and  such  would  be 
the  event  unless  a  number  of  voters  had  been  prevented 
from  voting,  sufficient  to  have  varied  the  result."  And  to 
the  same  purport  is  Augustin  v.  Eggleston? 

§  566.  "Where  it  is  alleged  that  a  large  number  of  per- 
sons have  been  deterred  from  voting  by  violence  and  intimi- 
dation, the  testimony  of  those  persons,  or  some  of  them, 
should  be  produced.  The  opinions  and  impressions  of  others 
is  not  sufficient.  Upon  this  point  the  report  in  Norris  v. 
Wandley  *  has  this  language : 

"  It  would  seem  that  if  over  two  thousand  electors  were 

1  ["  Efforts  on  the  part  of  black  citizens  to  enforce  unanimity  in  poli- 
tics among  voters  of  their  race  through  the  influence  of  the  church, 
ostracism  from  society,  and  indignities  which  fall  short  of  intimidation, 
will  not  avoid  an  election.  .  .  .  To  justify  the  annulment  of  an  election 
it  is  not  necessary  to  show  that  a  majority  of  the  electors  were  actually 
prevented  from  voting,  or  voted  against  their  wishes;  it  is  sufficient  to 
show  that  wrongs  against  the  freedom  of  election  have  prevailed,  not 
slightly  and  in  individual  cases,  but  generally,  and  to  the  extent  of  ren- 
dering the  result  doubtful."    Jones  v.  Glidewell,  53  Ark.,  161.] 

214La.  Ann.,  505. 

'13  La.  Ann.,  367;  [Hurd  v.  Romeis,  Mob.,  423;  Bo  wen  v.  Buchanan, 
Row.,  193]. 

♦  43d  Congress  [Smith,  68]. 


OHAP.  XVI.]  VIOLENCE   AND   INTIMIDATION.  419 

deterred  from  voting,  by  violence,  threats  or  intimidation, 
some  of  these  electors  could  be  found  to  come  forward  and 
swear  to  the  fact.  Your  committee  think  that  it  would  es- 
tablish a  most  dangerous  precedent  to  allow  a  fact  of  this 
character,  so  easily  established  by  the  direct  and  positive 
testimony  of  so  many  witnesses,  to  be  proven  solely  by  hear- 
say and  general  reputation.  We  have  not  forgotten  nor 
overlooked  the  fact  that  the  same  state  of  things  which 
would  make  men  afraid  to  vote  for  a  particular  party  might 
also  make  it  difficult  to  secure  testimony  in  behalf  of  that 
party.  But  in  many  parts  of  the  district  where  testimony 
was  taken  there  is  no  pretense  that  witnesses  were  intimi- 
dated ;  and  besides,  if  the  contestant  had  shown  to  the  sat- 
isfaction of  the  House  that  witnesses  needed  the  protection 
of  the  Federal  Government  in  order  to  be  safe  in  testifying 
fully  and  freely,  that  protection  would  have  been  afforded  at 
any  cost." 

§  567.  The  freedom  of  elections  is  of  the  utmost  impor- 
tance. The  law  justly  regards  all  attempts  to  interfere  with 
the  electors  in  the  peaceable  and  quiet  exercise  of  their  rights, 
or  to  improperly  influence  them  against  their  judgment  or 
desire,  as  a  crime,  and,  in  addition  to  the  ordinary  punish- 
ment of  the  crime  of  bribery  of  an  elector,  it  is  provided  by 
the  Constitution  of  many  of  the  States  that  whoever  shall 
be  convicted  of  that  crime  shall  forfeit  the  right  to  any  office 
of  profit  or  trust  under  the  State.^ 

§  568.  In  some  of  the  States  it  is  provided  by  statute 
that  the  militia  shall  not  be  called  out  for  exercise  or  drill 
on  the  day  of  election;  and  it  has  been  held  in  New  York 
that  a  defendant,  sued  under  an  act  of  this  character,  cannot 
plead  in  justification  that  he  acted  under  the  orders  of  his 
superior  officer.  Nor  is  it  any  defense  that  defendant  was 
ignorant  of  the  existence  of  the  law.'^ 


2 


1  See  the  Constitutions  of  Maryland,  Missouri,  New  Jersey,  West  Vir- 
ginia, Oregon,  California,  Kansas,  Texas,  Arkansas,  Rhode  Island,  Ala- 
bama, Florida,  New  York,  Massachusetts,  Vermont,  Nevada,  Tennessee, 
Connecticut,  Louisiana,  Mississippi,  Ohio  and  Wisconsin. 

2  Hyde  v.  Melvin,  11  Johns.,  5S0. 


CHAPTER  XYIL 

IMPEACHMENT  OF  RETURNS  FOR  FRAUD  OR  ILLEGAL 

VOTING. 

§  569,  570.    Return,  if  free  from  fraud,  the  best  evidence;  but  may  be 
impeached. 
571.    Nature  of  impeaching  proof  required. 
571.    Effect  of  rejecting  return. 
571.    Fraudulent  return  must  fall  to  the  ground. 
571.    Dangers  attending  rejection  of  return. 
672,  573.    Character  of  parol  proof  which  may  be  admitted. 

574.  Fraud  by  officers  and  by  other  persons. 

575.  Circumstantial  evidence  tending  to  show  fraud. 

576.  Effect  of  proof  of  fraud  which  does  not  change  result. 

577.  Check  list  as  evidence. 

578.  Not  necessary  to  show  that  officers  participated  in  fraud. 
678.    Evidence  aliunde  the  return. 

579.  What  acts  of  election  officers  will  constitute  fraud. 

580.  Presence  of  unauthorized  persons  at  the  place  of  canvassing 

votea 
681.    Return  not  rejected  on  account  of  illegal  votes  received  if  they 
did  not  change  the  majority. 

582.  Proof  that  vote  cast  was  largely  in  excess  of  niunber  of  legal 

voters. 
583a.  Disregard  of  law  sufficient  to  shift  burden  of  proot 

583.  Other  circumstantial  evidence  of  fraud. 
584    Fraudulent  naturalization  certificates. 

§  569.  Although  the  return  of  the  vote  of  a  given  pre- 
cinct, made  in  due  form,  and  signed  by  the  proper  officers, 
is  the  best  evidence  as  to  the  state  of  the  vote,  yet  it  may 
be  impeached,  on  the  ground  of  fraud  or  misconduct  on  the 
part  of  the  officers  of  the  election  themselves,  or  on  the  part 
of  others.  In  election  cases,  however,  before  a  return  can 
be  set  aside,  there  must  be  proof  that  the  proceedings  in  the 
conduct  of  the  election,  or  in  the  return  of  the  vote,  were  so 
tainted  with  fraud  that  the  truth  cannot  be  deduced  from  the 


OHAP.  XVII.]  IMPEACHMENT   OF   EETUENS.  421 

returns.^  The  rule  is  thus  stated  in  Howard  v.  Coojper: ' 
"  "When  the  result  in  any  precinct  has  been  shown  to  be  so 
tainted  with  fraud  that  the  truth  cannot  be  deducible  there- 
from, then  it  should  never  be  permitted  to  form  a  part  of 
tiie  canvass.  The  precedents,  as  well  as  the  evident  require- 
ments of  truth,  not  only  sanction,  but  call  for,  the  rejection 
of  the  entire  poll  when  stamped  with  the  characteristics  here 
shown." 

§  570.  The  rule  just  stated  needs  the  following  explana- 
tion in  order  that  it  may  be  correctly  understood;  The 
committee,  no  doubt,  meant  to  say  that  if  the  result,  as 
shown  ly  the  returns,  is  tainted  with  fraud,  the  returns  are 
to  be  rejected  as  false  and  worthless.  But  as  we  have  else- 
where seen,  the  question  whether  the  entire  vote  of  the  pre- 
cinct shall  be  rejected  for  fraud  depends  upon  another 
question,  viz. :  Whether  from  any  evidence  it  is  possible  to 
ascertain  the  true  result.  The  returns  may  be  rejected  as 
fraudulent,  and  yet  the  true  vote  may,  in  some  cases,  be 
ascertained ;  and  where  it  can  be  ascertained  independently 
of  the  rejected  returns,  the  law  requires  that  it  be  respected 
and  enforced.'  "Where  the  true  vote  cannot  be  ascertained, 
either  from  the  returns  or  from  evidence  aliunde^  the  vote 
of  the  precinct  is  to  be  rejected. 

§  571.  The  return  must  stand  until  such  facts  are  proven 
as  to  clearly  show  that  it  is  not  true.  When  shown  to  be 
fraudulent  or  false,  it  must  fall  to  the  ground.*  This  ruling 
is  well  settled  by  numerous  authorities,  including  the  fol- 
lowing.*^ The  following  remarks  concerning  the  dangers 
which  may  attend  the  application  of  this  rule  are  here 
quoted  with   emphatic   approval   from  the   report  of  the 

1  [Chamberlain  v.  Woodin,  2  Idaho,  609.] 

2 1  Bart,  275. 

3  [Ferguson  v.  Allen,  7  Utah,  263.] 

*[Blue  V.  Peter,  40  Kan.,  701.] 

5  Blair  v.  Barrett,  1  Bart.,  308;  Knox  v.  Blair,  1  Bart.,  521;  Howard  v. 
Cooper,  supra;  Washburn  v.  Voorhees,  2  Bart.,  54;  State  v.  Commission- 
ers, 85  Kan.,  640. 


422  ELECTIONS.  [chap.  XVH. 

committee  of  elections  in  the  House  of  Eepresentatives,  in 
Washburn  v.  Yoorhees:^ 

"  In  adopting  this  rule  the  committee  do  not  lose  sight, 
however,  of  the  danger  which  may  attend  its  application. 
"Wholesome  and  salutary,  not  less  than  necessary,  in  its 
proper  use,  it  is  extremely  liable  to  abuse.  Heated  partisan- 
ship and  blind  prejudice,  as  well  as  indifferent  investigation, 
may,  under  its  cover,  work  great  injustice.  It  is  not  to  be 
adopted  if  it  can  be  avoided.  'Eo  investigation  should  be 
spared  that  would  reach  the  truth  without  a  resort  to  it. 
But  it  is  not  to  be  forgotten  or  omitted,  if  the  case  calls  for 
its  application.  If  the  fraud  be  clearly  shown  to  exist  to 
such  an  extent  as  to  satisfy  the  mind  that  the  return  does 
not  show  the  truth,  and  no  evidence  is  furnished  by  either 
party  to  a  contest,  and  no  investigation  of  the  committee 
enables  them  to  deduce  the  truth  therefrom,  then  no  alterna- 
tive is  left  but  to  reject  such  a  return.^  To  use  it  under  such 
a  state  of  facts  is  to  use  as  true  what  is  shown  to  be  false.'' 

§  572.  Where  the  return  showed  that  Geo.  W.  Julian 
had  received  at  a  given  precinct  only  one  hundred  and 
forty-three  votes,  parol  proof  was  admitted  to  show  that  the 
return  was  false,  and  that  in  fact  he  had  received  a  larger 
number  of  votes  than  said  return  allowed  him.'  In  this 
case  one  hundred  and  seventy  legal  voters  of  the  precinct 
were  called,  and  were  permitted  to  testify  that  they  had  each 
voted  for  Mr.  Julian.  It  was  objected  that  the  proof  was 
not  competent  because  the  ballots  were  the  best  evidence; 
but  this  objection  was  very  properly  overruled.  The  allega- 
tion was  that  the  ballots  had  been  tampered  with ;  that  a 
fraud  had  been  committed,  by  which  a  number  of  ballots 
legallj''  cast  had  not  been  fairly  deposited  in  the  box  and 
honestly  counted  out  and  returned.  Of  course,  in  such  a 
case,  the  ballots  might  sustain  the  fraud.  The  ballots  are  the 
best  evidence,  when  it  is  shown  or  conceded  that  they  are 

1  Supra. 

2  [Londoner  v.  People,  15  Colo.,  557.] 
>  Reid  V.  Julian,  2  Bart.,  822. 


CHAP.  XVII.]  IMTEACHMENT   OF   EETUKNS.  423 

the  identical  ballots,  and  all  the  ballots,  deposited  by  legal 
voters ;  but  when  the  question  is  whether  fraudulent  ballots 
have  been  deposited,  or  honest  ballots  abstracted,  the  ballots 
in  the  box  are  by  no  means  the  best  evidence.  Fraud  of 
this  character  may,  therefore,  always  be  proven  by  parol.* 

§  573.  But,  of  course,  the  parol  evidence  offered  to  set  aside 
a  return  upon  the  ground  of  fraud  must  be  such  as  to  estab- 
lish the  fraud  or  mistake  in  the  reception  and  deposit  or  in 
the  count  or  return  of  the  votes.  The  official  acts  of  sworn 
officers  are  presumed  to  be  honest  and  correct  until  the  con- 
trary is  made  to  appear.  It  has  accordingly  been  held  that 
a  return  cannot  be  set  aside  upon  proof  that  a  recount  made 
by  unauthorized  persons  some  time  after  the  official  count 
has  been  made  showed  a  different  result  from  the  official 
count.  This  was  upon  the  ground  that  the  count  made  by 
sworn  officers  immediately  upon  the  closing  of  the  polls  was 
better  evidence  of  the  true  result  than  a  count  made  by  in- 
terested parties  not  sworn  at  a  subsequent  period  and  after 
the  result  of  the  official  count  had  been  made  known.  Such 
evidence  comes  far  short  of  establishing  either  fraud  or  mis- 
take in  the  official  count.'^ 

§  574.  Fraud  in  the  conduct  of  an  election  may  be  com- 
mitted by  one  or  more  of  the  officers  thereof,  or  by  other 
persons.  If  committed  by  persons  not  officers,  it  may  be 
either  with  or  without  the  knowledge  or  connivance  of  such 
officers.  There  is  a  difference  between  a  fraud  committed  by 
officers  or  with  their  knowledge  and  connivance,  and  a  fraud 
committed  by  other  persons,  in  this:  the  former  is  ordinarily 
fatal  to  the  return,  while  the  latter  is  not  fatal,  unless  it 
appear  that  it  has  changed  or  rendered  doubtful  the  result. 
If  an  officer  of  the  election  is  detected  in  a  wilful  and  de- 
liberate fraud  upon  the  ballot-box,  the  better  opinion  is  that 
this  will  destroy  the  integrity  of  his  official  acts,  even  though 
the  fraud  discovered  is  not  of  itself  sufficient  to  affect  the 
result.^    The  reason  of  this  rule  is  that  an  officer  who  be- 

1  And  see,  also,  Washburn  v.  Voorhees,  2  Bart.,  54 

2  Gooding  v.  Wilson,  42d  Congress  [Smith,  79]. 

9  Ante,  §§  342,  511;  Judkins  v.  Hill,  50  N.  H.,  140. 


424  ELECTIONS.  [chap.  XVH. 

trays  his  trust  in  one  instance  is  shown  to  be  capable  of  the 
infamy  of  defrauding  the  electors,  and  his  certificate  is,  there- 
fore, good  for  nothing.  If,  for  example,  an  election  officer, 
having  charge  of  a  ballot-box  prior  to  or  during  the  canvass, 
is  caught  in  the  act  of  abstracting  certain  ballots  and  sub- 
stituting others,  although  the  number  shown  to  have  been 
abstracted  be  not  suflBcient  to  affect  the  result,  yet  no  confi- 
dence can  be  placed  in  the  contents  of  a  ballot-box  which 
has  been  in  his  custody.^  We  repeat,  therefore,  the  opinion 
expressed  in  the  former  chapter,  that  a  wilful  and  deliberate 
fraud  on  the  part  of  such  an  officer  being  clearly  proven 
should  destroy  all  confidence  in  his  official  acts,  irrespective 
of  the  question  whether  the  fraud  discovered  is  of  itself  suf- 
ficient to  change  the  result.  The  party  taking  anything  by 
an  election  conducted  by  such  an  officer  must  prove  his  vote 
by  evidence  other  than  the  return.* 

§  575.  Fraud  in  the  conduct  of  an  election  may  be  shown 
by  circumstantial  evidence.  It  is  sometimes  a  difficult  mat- 
ter to  decide  whether  misconduct  on  the  part  of  election 
officers  is  to  be  regarded  as  constituting  fraud  or  as  only 
the  result  of  carelessness,  ignorance  or  negligence.  If,  how- 
ever, such  misconduct  has  the  effect  to  destroy  the  integrity 
of  the  returns,  and  avoid  the  prima  facie  character  which 
they  ought  to  bear,  such  returns  will  be  rejected,  and  other 
proof  demanded  of  each  vote  relied  on.  And  this  is  the  rule 
concerning  such  misconduct,  whether  it  be  shown  to  have 
been  fraudulent,  that  is  to  say,  prompted  by  a  corrupt  pur- 
pose, or  whether  it  arise  from  a  reckless  disregard  of  the 
law  or  from  ignorance  of  its  requirements.  In  either  case 
the  effect  may  be  to  destroy  the  integrity  of  the  returns.  For 
example,  in  Covode  v.  Foster^  a  return  was  rejected  upon 
proof  that  a  hat  and  a  cigar  box  were  used  instead  of  the 
regular  ballot-boxes ;  that  they  were  placed  in  or  near  the 
window  through  which  the  votes  were  received ;  that  persons 
other  than  members  of  the  board  were  permitted  in  the  room 

1  [Hurd  V.  Romeis,  Mob.,  429.] 

2  [Lloyd  V.  Sullivan,  9  Mont,  557.] 
»  2  Bart.,  600. 


CHAP.  XVII.]  IMPEACHMENT   OF   KETUKNS.  426 

where  the  votes  were  received,  and  were  near  the  boxes,  and 
were  passing  in  and  out  at  pleasure  during  the  day ;  that 
there  was  great  noise  and  confusion  in  the  room ;  that  whisky 
was  kept  in  the  room,  and  members  of  the  board  drank  to 
intoxication ;  that  challenges  were  disregarded ;  and  when  the 
votes  were  counted  there  were  six  ballots  in  the  box  over 
and  above  the  number  of  names  on  the  tally  list.  These 
facts,  together  with  the  further  fact  that  one  Speers  acted 
as  clerk  without  authority,  and  without  being  sworn,  were 
regarded  by  the  committee  and  by  the  House  as  furnishing 
good  ground  for  rejecting  the  return.  But  misconduct 
which  does  not  amount  to  fraud,  and  by  which  no  one  is  in- 
jured, does  not  vitiate  the  poll.^ 

§  576.  Where  the  managers  of  an  election  are  clearly  shown 
to  have  committed  a  fraud  in  the  conduct  of  the  election,  or 
the  counting  or  returning  of  the  votes,  and  where  the  effect 
of  the  fraud  discovered  does  not  affect  or  change  the  result, 
it  is  a  grave  question  whether  the  result  should  not  be  the 
rejection  of  the  return  in  toto.  In  Judhins  v.  Hill^  it  ap- 
peared that  there  were  declared  as  cast  at  one  of  the  precincts, 
twenty-seven  more  votes  for  county  commissioner  than  were 
marked  on  the  check  list.  The  court  said,  "  if  from  the  fact 
of  this  discrepancy  the  court  ought  to  find  that  it  was  the  re- 
sult of  fraud  in  the  managers  of  the  election,  the  court  would 
hesitate  long  to  count  any  of  the  votes  cast  at  an  election  so 
.  tainted,  on  the  ground  that,  with  such  proof  of  fraudulent 
and  corrupt  purposes,  no  confidence  could  be  entertained  in 
coming  to  any  reliable  conclusion  as  to  what  votes  were 
actually  given."  And  the  safe  rule  probably  is,  that  where 
an  election  board  are  found  to  have  wilfully  and  deliberately 
committed  a  fraud,  even  though  it  affect  a  number  of  votes 
too  small  to  change  the  result,  it  is  sufficient  to  destroy  all 
confidence  in  their  official  acts,  and  to  put  the  party  claim- 
ing anything  under  the  election  conducted  by  them  to  the 
proof  of  his  votes  by  evidence  other  than  the  return.' 

1  Dobyns  v.  Weadon,  50  Ind.,  298. 

2  50N.  H.,  140. 

3  And  see  Knox  Co.  v.  Davis,  63  III.,  405;  Russell  u  State,  11  Kan.,  308. 


426  ELECTIONS.  [chap.  XVH. 

§  5Y7.  It  was,  however,  decided  in  the  case  of  Judkins 
V.  Hillj  sujpra,  that  no  inference  of  fraud  can  fairly  be 
drawn  from  the  single  fact  that  the  votes  declared  exceeded 
by  twenty-seven  the  number  of  persons  marked  on  the  check 
list  as  having  voted.  This  discrepancy,  the  court  say,  might 
have  resulted  from  a  failure  to  check  all  the  names  of  per- 
sons voting;  or  from  double  voting  without  the  knowledge 
of  the  board ;  or  from  a  mistake  in  counting ;  and  in  either 
case  the  board  may  have  acted  in  good  faith.  The  presump- 
tion is  that  an  election  is  honestly  conducted,  and  the  burthen 
of  proof  to  show  it  otherwise  is  on  the  party  assailing  the 
return.  What  we  mean  here  to  assert  is  only  this:  that 
where  a  return  is  clearly  shown  to  be  wilfully  and  corruptly 
false  in  any  material  part,  the  whole  of  it  becomes  worthless 
as  proof.  For  if  false  and  corrupt  in  one  part,  it  may  be  in 
others,  and  all  faith  in  its  reliability  is  destroyed.  In  such 
a  case,  however,  it  must  not  be  assumed  that  the  election  is 
necessarily  void.  If  satisfactory  proof  of  the  actual  vote 
can  be  made,  and  the  result  thus  ascertained,  the  election 
may  stand,  although  the  return  falls  to  the  ground. 

§  578.  It  is  not  necessary,  in  order  to  set  aside  a  return 
for  fraud,  that  it  be  shown  that  the  officers  of  elections  par- 
ticipated in  the  fraud.  If  third  persons  unlawfully  possess 
themselves  of  the  ballot-box  during  or  after  the  close  of  the 
election,  before  the  canvass,  and  destroy  the  ballots  or  a  por- 
tion of  them,  or  abstract  some  of  the  ballots  and  place  in  the 
box  others,  or  in  any  manner  so  tamper  with  the  ballots  as 
to  change  or  render  uncertain  the  result,  such  facts  being 
proven  will  render  the  canvass  and  return  void,  although  the 
canvassing  officers  may  have  had  no  connection  with  the 
fraud,  and  no  knowledge  of  it.^ 

§  579.  It  would  be  difficult,  if  not  impossible,  to  specify 
in  detail  the  various  acts  of  election  officers  which  will  con- 

1  People  V.  Cook,  8  N.  Y.,  67,  86;  People  ex  rel.  Judson  v.  Thatcher, 
supra.  The  rule  is,  that  if  a  return  be  impeached  for  fraud,  it  is  good 
for  nothing  as  evidence,  and  all  legal  votes  must  be  proved  by  evidence 
aliunde.    See  ante,  §§  511,  515,  et  seq.;  %  576. 


CHAP.  XVII.]  IMPEACHMENT   OF   EETURNS.  427 

stitute  fraud.  "Without  attempting  such  specification,  it  will 
be  sufficient  here  to  say  that  any  act  on  the  part  of  such  an 
officer,  by  which  a  legal  voter  has  been  designedly  and 
wrongfully  deprived  of  his  vote ;  or  by  which  an  illegal  vote 
has  been  purposely  and  unjustly  received;  or  by  which  a 
false  estimate  has  been  imposed  upon  the  public  as  a  genuine 
canvass,  is  fraudulent.  Fraud,  however,  cannot  be  predicated 
of  a  mere  emotion  of  the  mind  disconnected  from  an  act  oc- 
casioning an  injury  to  some  one.  There  must  be  a  fraudu- 
lent transaction,  and  a  party  injured  thereby.^ 

§  580.  The  fact  that  persons  other  than  members  of  the 
board  of  election  officers  are  allowed  to  be  in  the  room  with 
such  officers  when  votes  are  being  received  and  deposited 
will  not  of  itself,  and  in  the  absence  of  any  proof  of  miscon- 
duct on  their  part,  be  sufficient  to  invalidate  the  return ;  ^  but 
the  admission  of  such  persons  is  decidedly  improper,  espe- 
cially if  the  persons  admitted  be  the  partisans  of  any  par- 
ticular candidate  or  ticket,  and  the  fact  of  their  presence 
and  misconduct  may  be  shown  as  circumstances  tending  to 
invalidate  the  return.^ 

§  581.  It  is  not  a  valid  objection  to  an  election  that  ille- 
gal votes  were  received,  if  they  did  not  change  the  majority.* 
If,  therefore,  a  number  of  legal  voters  withdraw  from  an 
election  and  decline  to  vote  upon  the  ground  that  illegal 
votes  are  being  received,  they  do  so  at  their  peril,  and  take 
their  chances  of  being  able  afterwards  to  show  that  the 
number  of  such  illegal  votes  was  large  enough  to  change 
the  result."^ 

1  People  V.  Cook,  8  N.  Y.,  67. 

^[Atkinson  v.  Lorbeer,  111  Cal.,  419.] 

3 Thompson  v.  Ewing,  1  Brewst.,  Ill;  Covode  v.  Foster,  suprcu 

*  [Hacker  v.  Conrad,  131  Ind.,  444.  It  is  not  enough  to  show  that  ille- 
gal votes  were  received  in  number  greater  than  the  plurality  returned 
for  the  incumbent;  there  must  also  be  shown  circumstances  rendering 
probable  the  conclusion  that  these  illegal  votes  were  cast  for  the  in- 
cumbent.   Lehlbock  v.  Haynes,  54  N.  J.  Law,  77.J 

*  First  Parish,  etc.,  v.  Stearns,  21  Pick,,  148;  Trustees,  etc.,  v.  Gibbs,  3 
Cush.,  39;  [Maynard  v.  Stillson  (Mich.),  66  N.  W.  Eep.  388J. 


428  ELECTIONS.  [chap.  XVII. 

§  582.  Every  circumstance  which  tends  to  show  that  an 
election  was  fraudulent  may  be  proven,  and  the  court  must 
determine,  from  all  the  evidence,  whether  fraud  has  been 
shown.  As,  for  example,  if  the  aggregate  vote  cast  is  largely 
in  excess  of  the  number  of  legal  voters  resident  in  the  pre- 
cinct, or  if  the  vote  cast  at  the  election  in  question  is  largely 
in  excess  of  the  vote  cast  at  any  previous  or  subsequent  elec- 
tion, and  this  fact  is  not  explained,  or  if  a  large  number  of 
persons,  unknown  to  the  oldest  residents  of  the  precinct, 
were  present  at  the  election  and  were  seen  voting,  or  if  the 
list  of  voters  contains  the  names  of  a  large  number  of  per- 
sons who  are  unknown  to  those  inhabitants  best  acquainted 
with  the  people  residing  within  the  limits  of  the  precinct, 
such  facts  as  these,  if  unexplained,  will  often  establish  the 
fact  that  frauds  have  been  perpetrated  and  illegal  votes  cast, 
and  make  it  necessary  to  throw  out  the  poll  altogether,  un- 
less it  can  be  sifted  and  purged.^ 

[§  582a.  "While  it  is  true  that  mere  irregularities  in  the 
conduct  of  an  election,  where  the  will  of  the  voter  has  not 
been  suppressed  or  changed,  will  be  disregarded,  yet  a  suc- 
cession of  unexplained  irregularities,  and  a  disregard  of  law 
on  the  part  of  the  officials,  is  sufficient  to  deprive  the  ballot- 
box  and  the  returns  of  the  credit  to  which  they  are  other- 
wise entitled,  and  shift  the  burden  upon  the  party  main- 
taining the  legality  of  the  official  count.]  ^ 

§  583.  In  Littlefield  v.  Oreen^  it  appeared  that  in  a  pre- 
cinct containing  only  about  four  hundred  and  fifty  legal 
voters  there  was  actually  cast,  counted  and  returned,  two 
thousand  eight  hundred  and  twenty  ballots.  It  also  ap- 
peared that  a  large  number  of  names  on  the  poll  list  were 
recorded  in  alphabetical  order.  It  was  a  clear  case  of  fraud, 
and  the  only  question  considered  was,  whether  there  was 
any  proof  upon  which  the  poll  could  be  purged  and  the 
legal  votes  separated  from  the  illegal.    The  court  refused  to 

1  Kjiox  v.  Blair,  1  Bart.,  531. 

2  [Langston  v.  Venable,  Row.,  435w] 
•Bright.  Elec  Cas.,  49a 


CHAP.  XVII.]  IMPEACHMENT   OF   EETUENS.  42d 

allow  any  of  the  votes  cast  at  the  precinct  in  question  to  be 
counted,  on  the  ground  that  there  was  no  sufficient  proof  of 
any  legal  vote  whatever.  It  was  shown  that  there  were  over 
four  hundred  persons  in  the  precinct  who  were  entitled  to 
vote,  but  there  was  no  proof  outside  of  the  return  that  any 
of  these  voted,  or  as  to  how  they  voted.  The  court  properly 
rejected  the  return  as  utterly  unreliable  and  unworthy  of 
credit.  The  return  was,  therefore,  not  admissible  in  evidence 
for  any  purpose,  and  it  was  the  duty  of  respondent  to  have 
shown  the  legal  vote  by  other  evidence.  There  was  no  proof 
upon  which  the  court  could  purge  the  return  and  separate 
the  good  votes  from  the  bad,  and  therefore  the  whole  poll 
was  necessarily  thrown  out.^ 

§  584.  Naturalization  certificates  fraudulently  issued  by 
the  clerk  of  a  court,  without  the  order  of  the  court  itself, 
are  void,  and,  although  regular  on  their  face,  confer  no  right 
upon  the  holders,  and  their  fraudulent  character  may,  on  the 
trial  of  a  contested  election  case,  be  shown  by  parol.'  But 
an  election  officer  cannot  go  behind  the  certificate  of  natu- 
ralization.' Such  an  officer  may,  however,  act  upon  the 
voter's  admission  of  facts  which,  if  true,  avoid  his  certifi- 
cate.* 

1  And  see  to  the  same  point,  Russell  v.  State,  11  Kan.,  308;  State  v. 
Commissioners,  35  Id.,  640;  [Lloyd  v.  Sullivan,  9  Mont,  577]. 
i  Ante,  %  468. 
^  Ante,  %%  76,  77. 
*  Ante,  %%  287,  2dt 


CHAPTER  XYIII. 
PROSECUTIONS  FOR  VIOLATIONS  OF  ELECTION  LAWS. 

585.    Statutory  remedy  exclusive. 

585, 586.  Whether  the  crime  of  illegal  voting  can  be  punished  at 
common  law,  query. 

585.    Decision  of  the  question  in  Massachusetts. 

585.    Ruling  in  Ohio. 

587,  588.  Conflict  of  authority  as  to  necessity  for  showing  that  de- 
fendant had  knowledge  of  his  disqualification. 

589, 590.  Liability  of  person  voting  upon  void  certificate  of  natural- 
ization. 

590-593.    Rule  where  qualification  of  voter  is  question  of  doubt 

593,  594    What  constitutes  the  completed  act  of  illegal  voting. 

595.    Liability  of  minor  who  votes  believing  he  is  of  age. 

596, 597.    No  conviction  unless  election  was  authorized  by  law. 

598.  Construction  of  statute  punishing  the  offense  of  voting  "  with- 

out being  duly  qualified." 
599, 600.    Character  of  question  decided  by  election  oflSoer  to  be  con- 
sidered. 

599.  Liability  for  fraudulently  appointing  illiterate  inspector  of  elec- 

tion. 

600.  Distinction  between  discretionary  and  quasi  judicial  powers  of 

election  ofllcers. 

601.  Mere  irregularity  in  manner  of  conducting  election  no  defense. 
603.    Advice  of  friends  cannot  be  shown  in  defense. 

603.  Nor  can  a  favorable  decision  by  officers  of  election  upon  defend- 
ant's right  to  vote. 

603.  Requisites  of  an  indictment  for  illegal  voting. 

604,  605.    Indictment  must  advise  defendant  definitely  as  to  nature 

of  charge  against  him. 
606, 607.    Not  always  sufficient  to  follow  words  of  statute^ 
606-614.    lUustrationa 
606.    Case  in  Tennessee. 

608.  613.    In  general  disqualifications  must  be  specified. 

609.  Not  necessary  to  aver  that  election  was  held  by  the  proper  officers. 

610.  Nor  what  particular  officers  were  to  be  chosen  at  the  election. 

611.  Officer  not  liable  for  mistake  of  judgment  under  statute  of 

Pennsylvania. 
613b    Indictment  for  voting  more  than  once  at  same  election. 


CHAP.  XVIII.]  PEOSECUTIONS.  431 

§  614  Must  state  where  illegal  vote  was  cast. 

615.  Presumption. 

616.  Advice  of  counsel 

617.  Case  in  Massachusetts. 

618.  Burden  of  proof  to  show  non-residence  is  upon  the  Common- 

wealth. 

619.  Defendant's  statement  at  time  of  voting  not  admissible  in  evi- 

dence. 

§  585.  It  is  not  within  the  purpose  of  this  work  to  treat 
of  the  familiar  general  rules  and  principles  of  criminal  prac- 
tice and  evidence,  but  it  is  thought  that  it  will  be  useful  to 
call  attention  to  some  of  the  more  important  rulings  of  the 
courts  respecting  the  application  of  these  rules  and  princi- 
ples to  cases  arising  under  statutes  providing  for  the  punish- 
ment of  persons  guilty  of  violating  election  laws.  In  nearly 
all  of  the  States  there  are  statutes  making  criminal  all  at- 
tempts at  fraud  or  illegal  voting,  and  as  a  matter  of  course, 
where  there  is  such  a  statute,  the  remedy  prescribed  thereby 
is  exclusive  of  any  proceeding  under  the  common  law.  As 
to  whether  the  crime  of  illegal  voting  or  the  like  can  be 
punished  at  common  law  in  the  absence  of  any  statute  upon 
the  subject,  the  authorities  are  not  altogether  harmonious. 
The  better  opinion,  and  the  one  sustained  by  the  weight  of 
authority,  is  that  there  is  a  criminal  common  law  applicable 
to  such  offenses  which  the  courts  of  the  several  States  may 
enforce  in  the  absence  of  appropriate  statutory  provisions.^ 

§  586.  In  Commonwealth  v.  Bamuel  Silsbee^  the  indict- 
ment charged  that  the  defendant,  a  legal  voter,  at  the  town 
meeting  held  on  the  11th  day  of  March,  1811,  at  Salem,  for 
the  choice  of  town  officers,  "  did  then  and  there  wilfully,  etc., 
give  in  more  than  one  vote  for  the  choice  of  selectmen  for 
said  town  of  Salem,  at  one  time  of  balloting." 

This  was  not  made  an  offense  by  the  express  provisions  of 
any  statute,  but  the  Court  held  it  to  be  an  offense  at  common 
law. 

1  [Commonwealth  v.  McHale,  97  Pa.  St.,  397.] 
»9  Mass.,  416. 


4:32  ELECTIONS.  [CHAP.  XVm. 

"  There  cannot  be  a  doubt,"  says  the  Court,  "  that  the 
offense  described  is  a  misdemeanor  at  common  law.  It  is  a 
general  principle  that  where  a  statute  gives  a  privilege,  and 
one  wilfully  violates  such  privilege,  the  common  law  will 
punish  such  violation.*  In  town  meetings  every  qualified 
voter  has  equal  rights,  and  is  entitled  to  give  one  vote  for 
every  oflBcer  to  be  elected.  The  person  who  gives  more  in- 
fringes and  violates  the  rights  of  the  other  voters,  and  for 
this  offense  the  common  law  gives  the  indictment." 

In  Ohio,  however,  a  different  rule  prevails.^  And  in  the 
Federal  courts  there  is  no  common-law  criminal  jurisdiction. 

§  587.  It  is  a  disputed  question  whether  under  an  indict- 
ment for  illegal  voting  it  is  necessary,  in  order  to  convict,  to 
show  that  the  defendant  had  knowledge  of  his  disqualifica- 
tion. In  Commonwealth  v.  Aglar^  the  municipal  court  of 
the  city  of  Boston  held  that  a  person  is  not  liable  criminally 
for  illegal  voting,  unless  he  knew  at  the  time  that  he  was  not 
a  qualified  voter,  and  that  he  was  doing  or  attempting  to  do 
an  illegal  act ;  and  that  if  he  honestly  believed  that  he  had  a 
right  a  vote,  it  is  not  a  wilful  act  punishable  by  indictment. 
The  same  doctrine  prevails  in  Rhode  Island,  where  the  courts 
hold  that,  to  sustain  an  indictment  for  illegal  voting,  the  bal- 
lot must  be  fraudulently  cast,  that  is,  with  knowledge  by 
the  voter  of  his  disqualification.^  It  has  also  been  held  that 
whether  the  offense  was  wilfully  committed  is  a  question  for 
the  jury.* 

In  Tennessee  it  is  held  that  ignorance  of  the  law  will  not 
excuse  illegal  voting,  but  that  in  order  to  convict  it  must 
appear  that  the  voter  knew  a  state  of  facts  which  would,  in 
point  of  law,  disqualify  him.*    And  so  in  North  Carolina,' 

1  [State  V.  Philbrick,  84  Me.,  562.] 

2  Key  V.  Vattier,  1  Ohio,  132;  Van  Valkenburg  v.  The  State,  11  Ohio, 
404 

'Thacher's  Criminal  Cases,  412;  Bright  Elec  Cas.,  695. 

<  State  V.  Macomber,  7  R  L,  349. 

*  Commonwealth  v.  Wallace,  Thach.  Cr.  Cases,  592. 

**  McGuire  v.  State,  7  Humph.,  54. 

'State  V,  Hart,  6  Jones  (Law),  889;  State  v.  Boyett,  10  Ired.,  836, 


OHAP.  XVin.]  PKOSECUTIONS.  433 

111  California  the  courts  have  avoided  both  extremes,  and 
planted  themselves  upon  a  sort  of  middle  ground,  by  adopt- 
ing the  following  rule:  Where  an  unlawful  act  is  proved  to 
have  been  done  by  the  accused,  the  law  in  the  first  instance 
presumes  it  to  have  been  intended,  and  the  proof  of  justifi- 
cation or  excuse  lies  on  the  defendant.* 

§  588.  The  statute  of  Ehode  Island  provided  for  punish- 
ment of  any  person  who  at  "  any  election  Bhall  Jraiidulently 
vote,  not  being  qualified."  Under  this  statute  it  was  held, 
that  to  warrant  a  conviction  it  must  be  shown  that  the  vote 
was  fraudulently  cast,  that  is  with  knowledge  by  the  voter 
that  he  was  not  qualified  to  vote;  and  that  an  honest  mistake 
by  a  voter  as  to  his  right,  and  an  assertion  of  it  by  voting, 
will  not  render  him  liable  under  the  statute,  even  though  he 
is  cognizant  of  the  yaots  which  constitute  the  defect  in  his 
right. 3  In  this  case  it  is  said  that  "the  distinction  between 
acts  done  honestly  under  a  mistaken  sense  of  right,  and  acts 
done  fraudulently,  with  a  consciousness  of  wrong,  is  familiar 
to  every  one  who  has  had  occasion  to  trace  the  boundary  line 
between  trespass  and  larceny."* 

§  589.  A  person  to  whom  a  void  certificate  of  naturaliza- 
tion has  been  issued  by  the  clerk  of  a  State  Court  without 
any  action  by  the  court  and  without  the  appearance  of  such 
person  in  court  has  of  course  no  legal  right  to  vote  as  a 
naturalized  citizen.  It  has,  however,  been  held  that  the  act 
of  voting  upon  such  a  certificate  by  one  who  is  only  shown 
to  have  known  that  it  was  issued  by  the  clerk  and  not  by  the 
court,  is  not  a  crime  that  can  be  punished,  for  the  reason 
that  the  voter  may  have  acted  in  good  faith,  believing  the 
certificate  to  be  valid.* 

§  590.     Substantially  the  same  doctrine  was  laid  down  in 

1  People  V.  Harris,  29  Cal.,  678. 

2  State  V.  Macomber,  7  R.  I.,  349.  [See,  also,  State  v.  McClarnon,  15 
R.  L,  462.] 

»  And  see,  also.  State  v.  McDonald,  4  Harrington,  555;  State  v.  Porter, 
Id.,  556. 
« United  States  v.  Burley,  14  Blatchf.,  91. 
28 


^34  ELECTIONS.  [chap.  xvin. 

State  V.  Smith,  et  alA  This  was  an  indictment  charging 
defendants,  as  selectmen,  with  erasing  from  the  list  of  voters 
of  the  town  of  Boscamen,  the  name  of  Timothy  Kellej, 
alleged  to  have  been  a  legal  voter  of  that  town.  It  was, 
under  the  statute,  the  duty  of  the  selectmen  to  hear  all 
applications  for  the  insertion  of  the  name  of  any  person 
upon  the  list,  or  for  the  erasure  of  any  name  therefrom? 
and  to  hear  proof  and  decide  all  such  applications.  And  the 
statute  provided  that  "  if  any  selectman  at  any  session  holden 
for  the  correction  of  any  list  of  voters,  *  *  *  know- 
ingly erase  from  or  omit  to  insert  the  name  of  any  legal 
voter,  he  shall  be  punished,"  etc.  It  was  held  that  the  select- 
man could  not  be  punished  for  an  erroneous  decision  merely, 
but  only  for  corruption. 

§  591.  And  it  was  observed  by  the  Court,  that  notwith- 
Btandiug  the  effort  to  distinguish  by  law  clearly  and  plainly 
the  persons  who  are  entitled  to  vote,  "  there  are  still  cases  of 
no  little  difficulty  constantly  arising  under  those  laws,  some 
of  which  might  well  tax  the  acumen  of  persons  more  accus- 
tomed to  investigate  such  questions  than  many  of  those 
persons  are,  who  are  required  in  every  town  to  decide  and  to 
settle  them.  They  are  questions,  in  short,  in  the  decision  of 
which  errors  are  not  unlikely  to  occur,  and  it  is  certainly  an 
anomaly  in  the  law  if  those  who  are  charged  with  the  duty 
of  deciding  them,  are  liable  to  be  charged  criminally  for 
forming  an  opinion  that  the  court  may,  upon  inquiry, 
pronounce  to  be  erroneous." 

§  592.  And  in  Wisconsin  the  same  doctrine  was  very 
clearly  and  forcibly  stated  in  Byrne  et  al  v.  The  State. '  It 
was  there  very  clearly  shown  that  the  rule  that  ignorance  of 
the  law  excuses  no  man,  has  no  application  to  acts  which  are 
in  their  nature  official,  and  done  in  the  exercise  of  a  discre- 
tionary power  conferred  by  law.  That  maxim  applies  to 
acts  which  are  voluntary,  and  will  estop  such  officers  from 

» 18  N.  H.,  91. 
*  12  Wis.,  519. 


CHAP.  XVni.]  PROSECUTIONS.  435 

setting  up  their  ignorance  of  the  penalties  inflicted  by  a 
statute,  as  an  excuse  for  their  willful  violation  of  the  duties 
which  it  imposes  upon  them.  Where  the  officer  is  obliged 
by  law  to  act  and  to  decide,  the  most  that  reason  or  justice 
can  require  of  him,  is  a  hona  fide  effort  to  discharge  kis 
duties  according  to  the  best  of  his  knowledge  and  ability. 

§  593.  A  statute  which  provides  for  the  punishment  of 
any  one  who  shall  "wrongfully  put  or  insert"  ballots  in  the 
box,  was  construed  to  apply  to  a  case  where  the  defendant 
handed  a  fraudulent  ballot  to  a  judge  of  the  election,  with 
the  intent  to  induce  him  to  deposit  it  in  the  box.  Such  a 
statute  will  be  so  construed  as  to  attain  the  evident  object  of 
the  legislature.* 

§  594.  The  question  when  the  act  of  voting  is  to  be  con- 
sidered as  complete,  is  also  a  disputed  question.  Thus,  in 
Alabama  it  was  held  that  it  is  not  complete  until  the  ballot 
is  put  into  the  box,  and  the  name^of  the  voter  registered  by 
the  clerks,  and  that  a  defendant  can  not,  therefore,  be  con- 
victed of  illegal  voting,  if  the  act  is  not  thus  consummated.* 
But  in  Tennessee  it  is  held  that  when  a  voter  presents  himself 
before  the  judges,  hands  his  ticket  to  the  officer,  and  his 
name  is  announced  and  registered,  the  act  of  voting  is  com- 
plete, without  the  actual  placing  of  the  ballot  in  the  box.' 

§  595.  A  minor  who  is  otherwise  duly  qualified  can  not 
be  convicted  of  illegal  voting  if  he  voted  under  the  honest 
belief  induced  by  information  from  parents,  relatives  or 
acquaintances  having  knowledge  of  the  time  of  his  birth, 

'  Commonwealth  v.  Gale,  10  Bush.,  (Ky.,)  488. 

«  Blackwell  v.  Thompson,  2  Stew.  «&  Port.  348. 

'  Steinwehr  v.  State,  5  Sneed,  586.  A  statute  proriding  for  the  pHnish- 
ment  of  election  frauds  should  be  so  construed,  if  possible,  as  to  attain 
the  object  of  the  legislation  therein.  Thus  in  Kentucky  a  statute  pro- 
viding for  the  punishment  of  any  person  who  should  "  wrongfully  put  or 
insert "  ballots  in  the  boxes,  etc.,  was  held  to  prohibit  the  delivery  of  a 
fraudulent  ballot  to  a  judge  of  election,  or  procuring  another  to  practice 
the  fraud,  whether  with  or  without  a  corrupt  motive  on  the  part  of  the 
one  inserting  the  ballot.    Commonwealth  v.  Gale,  10  Bush.,  488. 


436  ELECTIONS.  [chap.  XVIIL. 

that  he  had  attained  his  majority. *  But  it  is  clearly  the 
duty  of  every  person  who  exercises  the  right  to  vote  to  use 
due  diligence  in  ascertaining  the  facts  as  to  his  qualifications, 
and  he  can  not  shut  his  eyes  to  facts  which,  by  the  exercise 
of  such  diligence,  he  might  ascertain.  The  general  rule  that 
ignorance  of  the  law  excuses  no  man,  applies  with  all  its 
force  to  cases  of  the  violation  of  election  laws;  but  ignorance 
of  facts,  if  it  be  not  willful  ignorance,  may  excuse.  The 
true  doctrine  is,  unless  otherwise  provided  by  statute,  that  if 
the  voter  is  aware  of  a  state  of  facts  which  disqualify  him 
under  the  law,  and  is  ignorant  of  the  law,  he  may  be  con- 
victed of  the  crime  of  illegal  voting.  If,  however,  he  is 
honestly  mistaken  about  a  question  of  fact,  as  for  example,  if  he 
honestly  believes  himself  to  be  twenty-one  years  of  age  when 
he  is  not,  he  may  be  excused.  If  he  knows  he  is  only  twenty 
years  old,  but  is  ignorant  of  the  law,  which  requires  him 
to  be  twenty-one  years  of  age,  he  can  not  be  excused.  And 
so  a  person  accused  of  illegal  voting  may  show  that  he  was 
honestly  mistaken  about  any  fact,  and  that  he  acted  conscien- 
tioQsly,  but  he  can  not  show  that  he  did  not  know  the  law. 

S  596.  In  Maine  it  has  been  held  that  an  indictment 
against  a  person  for  voting  twice  at  one  balloting,  for  the 
choice  of  a  selectman  at  a  town  meeting,  can  not  be  sustained 
unless  such  meeting  was  warned  and  notified  in  the  manner 
(prescribed  by  the  statute.  *  But  this  ruling,  to  be  sustained, 
anust  be  based  upon  the  fact,  that  under  the  statute  of  that 
jState  no  valid  town  meeting  for  the  choice  of  selectmen, 
could  be  held,  without  such  warning  and  notice.  The  true 
rule  governing  indictments  for  illegal  voting  is,  that  the  elec- 
ttion  at  which  the  illegal  vote  was  cast  was  a  lawful  and  valid 
election.  An  informality  or  irregularity  which  does  not  go 
tto  the  validity  of  the  election  itself,  can  not  be  pleaded  as  a 
kiefense  to  such  an  indictment. 

§  597.     It  has  accordingly  been  held  in  Texas  that  it  is  a 

»  Gordon  v.  State,  52  Ala.,  208. 

>  State  V.  Williams,  25  Maine,  661. 


CHAP.  XYIII.]  PKOSEOUTIONS.  437 

good  defense  to  an  indictment  for  illegal  voting  to  show  that 
the  election  was  not  legal  and  valid,  since  the  oflFense  covered 
by  the  statute  in  such  cases  is  that  of  voting  illegally  at  a 
lawful  election.  And  it  has  been  held  in  Texas  that  when  a 
party  was  indicted  and  imprisoned  on  a  charge  of  this  char- 
acter, the  question  of  the  constitutionality  of  the  statute 
under  which  the  election  was  held  can  be  inquired  into  in 
a  case  of  habeas  corjpua  brought  by  the  prisoner.  ^  This 
defense,  however,  must  go  to  the  lawfulness  and  validity  of 
the  election,  and  will  not  be  supported  by  showing  mere 
irregularity  in  the  manner  of  conducting  the  election,  or 
with  respect  to  the  voter  thereof. 

§  598.  Under  a  statute  providing  that  any  person  who 
shall  vote  "  without  being  duly  qualified,"  shall  be  punished, 
etc.,  and  also  providing  that  no  person  is  entitled  to  vote 
elsewhere  than  in  the  township  of  his  residence,  it  was  held 
that  a  person  who  was  a  resident  of  and  qualified  voter  in 
one  township,  and  who  voted  in  another,  was  liable  upon  an 
indictment  under  such  statute.  The  same  statute  required 
the  voter  if  challenged  to  swear  to  his  residence  in  the  town- 
ship, and  it  was  held  that  he  was  liable  to  indictment,  both 
for  perjury  and  for  illegal  voting.* 

§  599.  In  considering  whether  an  officer  of  election  has 
acted  willfully  and  corruptly  in  rejecting  a  vote  whi<;h  is 
offered,  it  is  proper  to  look  at  the  character  of  the  question 
he  was  called  upon  to  decide,  and  the  manner  in  which  h% 
conducted  himself  in  hearing  and  disposing  of  it.  If  the 
question  be  a  plain  one  to  the  common  understanding,  one 
about  which  men  of  ordinary  intelligence  would  be  likdy  to 
(ftgree,  and  if  it  be  decided  without  deliberation,  and  against 
(the  right,  a  strong  presumption  of  willfulness  and  coiruption 
will  arise.  But  if  it  be  a  question  of  doubt  or  difficulty,  one 
about  which  men  of  ordinary  intelligence  might  honesti|r 
differ,  and  if  the  judge  acts  with  deliberation,  and  with  Mk 

»  Ex  parte  Rodrigues,  39  Tex.,  705. 
*  The  St&te  v.  Mianick,  15  Iowa,  123. 


4C3  ELECTIONS.  [chap.  XVIlI. 

apparent  desire  to  decide  rightly,  and  errs  in  his  judgment, 
it  is  fair  to  presume  that  it  is  a  case  of  honest  error.^ 

§  600.  In  Mar3'^land  it  is  held  that  where  the  law  devolves 
discretionary  and  quasi  judicial  powers  upon  election  officers 
they  can  be  punished  only  for  abuse  of  discretion,  or  for  acts 
done  wilfully,  fraudulently  or  corruptly .^  But  it  is  also  held 
in  that  State  that  where  the  statute  imposes  upon  such  ofiicers 
purely  ministerial  or  clerical  duties  and  gives  them  no  dis- 
cretion as  to  their  performance,  and  where  a  penalty  is  pre- 
scribed for  a  failure  or  refusal  to  perform  such  duties,  it  is 
not  necessary  to  allege  or  prove  a  corrupt  purpose.^  This 
distinction  is  founded  upon  perfectly  sound  principles,  and 
it  is  important,  because  in  most  of  the  States  there  are  stat- 
utes imposing  purely  ministerial  duties  upon  such  officers 
and  providing  penalties  to  insure  their  prompt  and  faithful 
performance.  It  has  been  held  that  where  commissioners 
of  election  were  indicted  under  United  States  Revised  Stat- 
utes, Sections  5515  and  5522  [now  repealed],*  for  making  un- 
lawful additions  to  the  voting  list,  it  was  necessary,  in  order 
to  convict,  to  show  a  fraudulent  intent.* 

§  601.  Mere  irregularities  in  the  manner  of  holding  or 
conducting  an  election  constitute  no  defense  to  an  indict- 
ment for  illegal  voting.  If  there  was  an  election  held  in 
pursuance  of  law,  at  the  proper  time  and  place,  it  is  suffl- 

1  Id.  The  appointment  as  inspector  of  elections  of  a  person  who  could 
neither  read  nor  write,  naade  with  intent  to  affect  the  election  or  the 
result  thereof,  was  an  indictable  offense  under  Section  5515  of  the  Re- 
vised Statutes  of  the  United  States,  and  the  indictment  did  not  need  to 
contain  the  word  "fraudulent,"  the  act  charged  being  in  its  nature 
fraudulent.  It  is  impossible  for  a  person  who  can  neither  read  nor 
write  to  properly  perform  the  duties  of  such  an  office.  United  States 
V.  Carruthers,  15  Fed.  Rep.,  309.  A  mere  mistake  is  not  punishable;  but 
where  an  illegal  act  is  done  by  officers  of  election  with  the  intent  to 
change  or  affect  the  result  of  the  election,  the  act  is  a  fraud.    Id. 

2  Bevard  v.  Hoffman,  18  Md.,  479;  Friend  v.  Hamill,  34  Md.,  298;  State 
V.  Bixler,  62  Id.,  357;  [United  States  v.  Chamberlin,  32  Fed.  Rep.,  777]. 

3  McCullough  V.  Helwig,  7  AtL  Rep.,  454. 
*  [Act  of  Feb.  8,  1894.] 

5  United  States  v.  Wright,  16  Fed.  Rep.,  112.  See  also  People  «.  Boas, 
29  Hun  (N.  Y.),  377. 


CHAP.  XYIII.]  PEOSECUTIONS.  439 

cient.^  But  if  the  election  is  an  illegal  one,  the  indictment 
cannot  be  maintained.^ 

§  602.  On  the  trial  of  an  indictment  under  a  statute  for 
"  wilfully  voting  when  not  a  citizen  of  the  United  States," 
evidence  that  the  defendant  consulted  "  friends  "  as  to  his 
right  to  vote,  "  and  was  advised  by  them  that  such  right  ex- 
isted," was  held  inadmissible.  A  person  who  votes  illegally 
cannot  be  excused  on  the  ground  that  he  has  taken  counsel 
of  those  no  better  informed  than  himself.  If  he  had  con- 
sulted persons  learned  in  the  law,  and  being  advised  by  them 
with  full  knowledge  of  all  the  facts  that  he  was  a  legal  voter, 
this  fact  might  have  been  shown  as  tending  to  disprove  a 
criminal  intent,  but  such  evidence  would  not  be  conclusive.' 
A  favorable  decision  by  oflBcers  of  election  upon  the  right  of 
an  individual  to  vote  is  no  defense  to  an  indictment  for  ille- 
gal voting.* 

§  603.  It  is  not  within  the  scope  of  this  volume  to  go 
into  a  detailed  consideration  of  the  rules  of  pleading  appli- 
cable to  prosecutions  for  fraudulent  and  illegal  voting.  It  is 
sufficient  to  say  that  in  general  the  principles  and  rules  of 
criminal  pleading  govern  here.  The  indictment  should  con- 
tain a  specific  averment  of  the  facts  which  constitute  the 
offense  charged.' 

1  State  V.  Cahoon,  12  Ired.,  178. 

2  State  V.  Williams,  25  Me.,  561. 

8 State  V.  Shelley,  15  la.,  404:  Gordon  v.  State,  52  Ala.,  208.  And  see 
§  595.  [It  is  no  defense  to  a  prosecution  of  one  accused  of  voting  after 
having  been  disfranchised  by  a  conviction  of  larceny,  that  he  had  for- 
gotten the  fact,  nor  that  he  had  been  advised  by  friends  or  legal  counsel 
that  there  was  no  record  of  his  conviction  on  the  court  dockets.  Gandj' 
V.  State,  82  Ala.,  61.] 

<  Morris  v.  State,  7  Blackf.,  607.  [But  a  different  rule  has  been  adopted 
in  North  Carolina.  It  is  said  by  the  Supreme  Court  of  that  State  that 
"the  decision  of  the  judges  of  election  that  a  person  is  entitled  to  vote 
is  a  complete  defense  to  an  indictment  for  illegal  voting,  although  such 
person  may  not  be  in  fact  entitled  to  vote."  State  v.  Pearson,  97  N.  C, 
434.] 

5  As  to  requisites  of  an  indictment  for  unlawful  voting,  see  United 
States  V.  Hendric,  2  Sawy.,  479;  United  States  v.  O'Neill,  Id.,  481 ;  Unted 


440  ELECTIONS.  [chap.  XVIIT. 

§  604.  In  Iowa  it  has  been  held  that  where  a  statute 
provided  that  where  any  person  knowing  himself  not  to  be 
qualified  shall  vote  at  any  election  authorized  by  law,  he 
shall  be  punished,  etc.,  it  is  sufficient  if  the  indictment  fol- 
low the  language  of  the  statute,  and  it  need  not  state  in 
what  the  disqualification  consisted.^  But  this  is  not  the 
uniform  doctrine  of  the  courts  of  this  country.  The  weight 
of  authority,  as  well  as  of  reason,  probably  is,  that  the  de- 
fendant is  entitled  to  be  advised  by  the  indictment  more 
definitely  as  to  the  nature  of  the  charge  against  him;  e.  g., 
if  he  is  charged  with  voting  without  being  qualified,  the 
indictment  ought  to  state  wherein  he  is  disqualified. 

§  605.  A  statute  of  JS'ew  Jersey  provided  for  the  punish- 
ment of  "  any  person  who  shall  vote  or  fraudulently  offer  to 
vote,"  knowing  that  he  is  not  duly  qualified,  etc.  It  was 
held  by  the  Supreme  Court  of  that  State,  that,  in  charging 
a  defendant  with  the  offense  of  voting  illegally  under  this 
statute,  it  was  not  necessary  to  allege  that  the  illegal  vote 
wsiS  fraudulently  given,  but  in'charging  such  defendant  with 
offering  to  vote  illegally,  it  must  be  charged  that  he  fraudu- 
lently offered  to  vote,  knowing  that  he  was  not  duly  quali- 
fied, etc.  It  was  also  held  in  the  same  case  that  an  indict- 
ment which  failed  to  specify  the  particular  disability  which 
is  relied  on  as  a  disqualification  of  the  defendant  as  a  voter 
is  fatally  defective.^ 

§  606.  And  in  Tennessee  it  is  held  that  an  indictment 
charging  the  defendant  with  having  "  unlawfully  and  know- 
ingly voted,  not  being  a  qualified  voter,"  is  bad,  though  in 

States  V.  Johnson,  Id.,  482;  [State  v.  Miller,  182  Mo.,  297;  33  S.  W.  Rep., 
1149;  United  States  v.  Brown,  58  Fed.  Rep.,  558;  Blitz  v.  United  States, 
153  U.  S.,  308;  United  States  v.  Jaques,  55  Fed.  Rep.,  58.  The  same  rule 
applies  to  indictments  of  election  oflacers  for  fraud.  State  v.  Krueger 
(Mo.),  35  S.  W.  Rep.,  604;  Commonwealth  v.  Maddox  (Ky.X  83  a  W.  Rep., 
189.] 

1  State  V.  Douglass,  7  Iowa,  413. 

2  State  V.  Moore,  3  Dutch.,  105.  And  see,  also,  State  v.  Tweed,  8  Dutch., 
Ill;  United  States  v.  Cruikshank,  93  U.  S.,  55a 


CHAP.  XVIII.]  PEOSECUnONS.  Ml 

the  words  of  the  statute.  There  are  various  disqualifica- 
tions, and  the  indictment  must  show  which  one  is  wanting.* 

The  ground  upon  which  the  courts  proceed  in  holding 
that  it  is  necessary  to  specify  the  disqualification  is  this: 
There  are  numerous  disqualifications,  such  as  want  of  age, 
non-residence,  having  once  voted,  having  been  convicted  of 
felony,  non-payment  of  taxes,  want  of  registration,  and  the 
alike ; '  it  is  therefore  but  fair  that  the  defendant  should  be 
advised  by  the  indictment  which  of  these  disqualifications 
he  is  charged  with,  in  order  that  he  may  intelligently  pre- 
pare his  defense.     And  this  reasoning  seems  entirely  sound. 

§  607.  Nor  is  it  always  suflBcient  to  charge  an  offense  in 
the  words  of  a  statute.  "Whether  this  is  sufficient  or  not 
will  depend  upon  the  question  whether  to  do  so  will  make 
the  indictment  as  specific  as,  according  to  the  well-known 
rules  of  criminal  pleading,  it  ought  to  be.'  Thus,  where  the 
statute  provided  that  "if  any  inspector,  judge  or  clerk  shall 
be  convicted  of  any  wilful  fraud  in  the  discharge  of  his 
duties,  he  shall  undergo  an  imprisonment,"  etc.,  it  was  held 
that  an  indictment  charging  that  these  officers  "  did  commit 
wilful  fraud  in  the  discharge  of  their  duties,"  without  stat- 
ing the  particular  acts  constituting  the  fraud,  was  fatally 
defective.*  It  was  further  held  in  the  same  case,  that  the 
inspectors,  judges  and  clerks  cannot  be  joined  in  one  in- 
dictment as  defendants,  their  offices  being  distinct  and  their 
duties  distinct   and   separate.     And  in    Commonwealth  v. 

1  Pearce  v.  State,  1  Sneed,  63.  These  cases  are  in  conflict  with  State 
V.  Douglass,  supra,  and  the  doctrine  of  the  latter  case  is  sustained  by  the 
case  of  United  States  v.  Quin,  13  Int.  Rev.  Rea,  151,  and  United  States 
V.  BuUard,  13  Id.,  195. 

2  [In  People  v.  Barber,  48  Hun,  198,  an  indictment  charging  the  de- 
fendant, a  woman,  with  illegally  voting,  when  disqualified  on  account 
of  her  sex,  was  held  good.] 

'  [Under  a  prosecution  for  altering  a  tally-sheet  it  is  not  necessary  to 
set  out  a  copy  of  the  poll-book  or  tally-sheet;  it  is  sufficient  to  describe 
it  by  the  description  "poll-book"  or  "tally-sheet,"  and  allege  the  fraud- 
ulent alteration.    State  v.  Granville,  45  Ohio  St.,  264] 

^Commonwealths.  Miller,  2  Parsons, 480;  Bright. Elea  Cas., 711.  And 
see  United  States  v.  Cruikshank,  92  U.  S.,  543. 


442  ELECTIONS.  [chap.  XVIIL 

Qray^  a  similar  ruling  will  be  found.  In  that  case  the  in- 
dictment was  against  one  of  the  judges,  and  charged  him  with 
knowingly  and  unlawfully  receiving  the  vote  of  an  unquali- 
fied person.  This  was  held  sufficient  without  showing 
whether  the  other  judges  of  the  election  were  opposed  to,  or 
in  favor  of,  allowing  the  illegal  vote  to  be  cast.  And  see, 
also,  Commonwealth  v.  Ayer? 

§  608.  And  it  has  been  held  in  Indiana  that  an.  indict- 
ment which  charges  that  the  defendant  voted  at  an  election, 
"  not  having  the  legal  qualifications  of  a  voter,"  is  bad  for 
not  specifying  what  qualifications  the  voter  lacked  —  for 
alleging,  not  a  fact,  but  a  conclusion  of  law.'  Under  such 
an  indictment,  if  held  good,  the  State  might  prove  the  want 
of  any  one  of  the  many  qualifications  required  to  be  pos- 
sessed by  a  voter,  and  the  defendant  could  not  learn  from 
the  indictment  precisely  what  he  is  expected  to  meet.  This 
was  therefore  held  to  be  one  of  the  cases  in  which  it  is  not 
sufficient  to  charge  the  offense  in  the  words  of  the  statute.* 

§  609.  If  an  indictment  against  a  party  for  voting  ille- 
gally charges  that  the  election  was  held  on  the  day  fixed 
by  law,  states  what  officers  were  then  to  be  elected,  and  that 
such  election  was  authorized  by  law,  it  is  not  necessary  to 
aver  further  that  the  election  was  held  by  the  proper  officers. 
As  we  have  seen,  it  is  not  necessary  even  to  state  what  officers 
were  to  be  chosen  at  the  election,  because  the  law  fixes  that, 
and  the  Courts  must  take  judicial  notice  of  it.  An  aver- 
ment that  the  defendant  voted  illegally  at  an  election  held 
upon  a  specified  day,  and  authorized  by  law,  includes  the 
idea  that  the  election  was  held  by  the  proper  officers.  Such 
an  averment  clearly  and  necessarily  implies  not  only  that  the 
election  held  that  day  throughout  the  State  was  authorized, 
but  also  that  the  polls  at  which  the  defendant  voted  were 

1 2  Duvall,  873. 
2Cush.  Elec.  Cas.,  674 
8  Quinn  v.  The  State,  35  Ind.,  485. 

*  And  see  Gordon  v.  State,  52  Ala.,  308.  CJompare  State  r.  Welch,  31 
Minn.,  22,  and  State  v.  Bruce,  5  Oreg.,  64 


CHAP.  XVIII.]  PKOSECDTIONS.  443 

opened  and  the  election  conducted  by  the  properly  consti- 
tuted oflBcers.i 

§  610.  In  the  same  case  it  was  held  that  it  is  not  neces- 
sary in  an  indictment  to  state  what  oflBcers  were  to  be  chosen 
at  the  election  at  which  the  illegal  vote  was  given.  The 
Court  will  take  judicial  notice  of  the  statutory  provisions 
which  provide  for  the  election  of  certain  officers  on  a  given 
day.  Nor  is  it  necessary  that  in  such  an  indictment  there 
should  be  an  averment  that  the  defendant  voted  for  or 
against  any  particular  person.  It  being  shown  that  defend- 
ant voted,  the  presumption  that  he  voted  for  some  person 
necessarily  arises. 

§  611.  In  an  indictment  under  the  statute  of  Pennsyl- 
vania, providing  for  the  punishment  of  any  officer  of  election 
who  shall  "  knowingly  reject  the  vote  of  a  qualified  citizen," 
it  was  held  that  the  officer  could  not  be  held  criminally  liable 
for  a  mere  mistake  of  judgment,  but  only  for  a  wilful  disre- 
gard of  duty.  It  was  also  held  that  the  presumptions  are  in 
favor  of  the  officer,  the  law  presuming  that  he  has  acted 
conscientiously,  and  not  corruptly,  until  the  contrary  ap- 
pears.2 

§  612.  An  indictment  charging  the  defendant  with  hav- 
ing voted  more  than  one  time  at  a  general  election,  held  on 
a  given  day  in  a  particular  county,  is  not  demurrable  be- 
cause it  fails  to  allege  the  names  of  the  persons  or  officers 
for  whom  the  defendant  voted.^ 

§  613.  A  person  charged  with  a  public  offense  is  entitled, 
before  he  can  be  required  to  answer,  to  demand  a  specific 
averment  of  the  facts  which  constitute  the  offense  charged. 
It  is  therefore  not  sufficient  to  charge  in  general,  in  an  in- 
dictment, that  the  officers  of  an  election  did  commit  wilful 
fraud  in  the  discharge  of  their  duties;  there  must  be  some 
specific  averment  of  a  fact  which  constitutes  the  fraud 
charged.     It  is  not  sufficient  to  lay  the  offense  in  the  words 

1  The  State  v.  Douglass,  7  Iowa,  413. 

'Commonwealth  u  Lee,  1  Brewst.,  273;  Cushing's  Elec.  Cas.,  98. 

•Wilson  V.  State,  43  Ala.,  299. 


444  ELECTIONS.  [chap.  iVlU. 

of  the  statute,  unless  those  words  serve  to  allege  the  fact 
with  all  the  necessary  additions,  and  without  any  uncer- 
tainty or  ambiguity.* 

§  614.  Inasmuch  as  illegal  voting  is  a  local  offense,  it  is 
necessary  that  an  indictment  therefor  should  state  with  pre- 
cision where  the  illegal  vote  was  cast.* 

§  615.  The  same  presumptions  obtain  as  in  other  crim- 
inal cases.  The  maxim  ignorantia  legis  neminem  excusat 
applies.'  Where  the  defendant  is  proved  to  have  committed 
an  unlawful  act,  the  law  presumes  it  to  have  been  intended, 
and  the  burden  is  upon  him  to  show  justification  or  excuse.* 

§  616.  Evidence  that  a  party  consulted  counsel  as  to  his 
right  to  vote,  and  submitted  to  them  the  facts  of  his  case, 
and  was  advised  by  them  that  he  had  the  right,  is  admissi- 
ble in  his  favor  on  the  trial  of  an  indictment  against  him 
for  wilfully  voting,  knowing  himself  not  to  be  a  qualified 
voter,  but  is  not  conclusive  that  he  had  not  such  knowledge.* 

And  a  person  indicted  for  voting  while  yet  a  minor  may 
show  in  defense  that  he  voted  under  an  honest  belief,  in- 
duced by  information  derived  from  parents,  relatives  or  ac- 
quaintances having  knowledge  of  the  date  of  his  birth,  that 
he  had  attained  the  requisite  age.' 

§  617.  It  has  been  held  that  if  a  party  indicted  under 
the  statute  of  Massachusetts  for  wilfully  giving  in  a  vote  at 
an  election,  knowing  himself  not  to  be  a  qualified  voter,  ad- 
mits on  his  trial  that  he  voted  at  the  election,  it  is  equivalent 
to  an  admission  that  he  voted  wilfully.'    But  this  could 

1 3  Parson's  Select  Caa,  480.  [An  indictment  woiJd  not  lie  against 
one  attempting  to  vote  a  second  time,  under  Section  5511,  United  States 
Revised  Statutes,  for  preventing  and  punishing  corruption  at  Congres- 
sional elections.    United  States  v.  Trainor,  36  Fed.  Rep.,  176.] 

estate  V.  Fitzpa trick,  4  R  L,  269;  Commonwealth  v.  Shaw,  7  Mete,  58. 

•McGuire  v.  State,  7  Humph.,  54;  State  tt  Hart,  6  Jones  (N.  G.),  889; 
State  V.  Boyett,  10  Ired.  (N.  C),  336. 

*  People  V.  Harris,  29  CaL,  678. 

» Commonwealth  v.  Bradford,  9  Mete.,  2681 

•Gordon  v.  State,  53  Ala.,  308. 

'  Commonwealth  v.  Bradford,  9  Mete.,  268L 


CHAP.  XVrn.]  PK0SECUTI0N8.  445 

hardly  be  true  if  the  term  "  wilfully  "  was  here  used  in  the 
ordinary  sense  as  implying  a  corrupt  or  unlawful  purpose. 
Such  a  purpose  could  not  be  inferred  from  the  mere  fact  of 
voting.  It  was  not,  however,  in  this  sense  that  the  term 
was  used  by  the  Court.  But  as  the  judge  delivering  the 
opinion  declares,  it  was  employed  as  meaning  only  "  design- 
edly, purposely,  with  an  intent  to  claim  and  exerdse  the 
right  of  suffrage." 

§  618.  On  the  trial  of  a  party  indicted  for  wilfully  giv- 
ing in  a  vote  at  an  election,  knowing  himself  not  to  be  a 
qualified  voter,  when  the  only  question  is  whether  he  had  re- 
sided in  the  town  where  he  voted  six  months  next  preceding 
the  election,  evidence  that  he  had  resided  in  another  town 
until  within  seven  months  of  the  election  does  not  put  upon 
him  the  burden  of  showing  that  he  had  changed  his  resi- 
dence, but  the  burden  of  proof  to  support  the  indictment 
remains  on  the  Commonwealth.^ 

§  619.  It  is  held  in  Indiana  that  on  trial  of  an  indictment 
for  illegal  voting,  the  defendant's  statements  made  at  the 
polls  on  being  challenged  are  not  admissible  evidence  in  his 
favor,  nor  is  the  decision  of  the  election  officers  in  favor  of 
his  right  to  vote  any  defense.^ 

lid. 

2  Morris  v.  State,  7  Blaokf.,  607. 


CHAPTER  XIX 

LEGISLATIVE   BODIES— THEIR   ORGANIZATION   AND   JUDI- 
CIAL POWERS. 

§  620.  Importance  of  established  rules  governing  organization. 

621.  Members  holding  usual  credentials  entitled  to  participate  in  or- 
ganization. 

623.  Temporary  organization. 

623.  Statutory  regulations. 

624  No  general  business  until  members  have  been  sworn. 

625.  Power  of  Houses  of  Congress  over  election,  returns  and  qtialifi- 

cations  of  their  members. 

626.  Powers  and  duties  of  clerk  of  lower  House  of  CongresSt 

627.  Division  of  legislative  body  which  ought  to  be  a  unit. 
638,  629.    Rule  for  determining  which  is  the  legal  organization. 

638.    Distinction  between  supreme  and  subordinate  legislative  bodies. 
638.    Power  of  courts  over  the  latter. 

638.  Important  case  in  Pennsylvania. 

639.  Question  between  rival  bodies  each  claiming  to  be  Legislature. 
629-631.    Decision  of  United  States  Senate. 

633.    Power  of  legislative  body  to  preserve  order  and  deoorum. 

633.  Duty  of  presiding  officer. 

634.  Power  of  Houses  of  Congress  over  their  members. 

634,  635.    Expulsion. 

635,  636.    Jurisdiction  to  inquire  into  acts  done  before  eleoti<mr 
637.    Power  to  punish  for  contempt. 

637.  638.    Power  over  witness  summoned  before  them. 

638.  Power  of  legislative  bodies  generally  over  witnessea 

639.  Refusal  of  witness  to  answer  questions. 
639.    Act  of  Congress  of  January  34, 1857. 

639,  640.    Power  of  House  and  of  courts  under  said  act 

640.  Power  of  legislative  body  to  punish  for  contempt  not  general, 

but  limited. 
640.    Decision  of  Supreme  Court  of  the  United  States  in  Kilbourne  v. 
Thompson. 

§  620.  Inasmuch  as  the  failure  of  the  legislative  depart- 
ment of  a  government  (whether  National,  State  or  municipal) 
to  organize  and  proceed  regularly  in  the  discharge  of  its  duties 
may  prove  a  grave  and  most  serious  evil,  it  is  important  that 


CHAP.  XIX.]  LEGISLATIVE   BODIES.  447 

the  rules  governing  the  organization  of  such  bodies  be 
defined  as  clearlj  as  possible,  and  be  adhered  to  and  enforced 
with  great  strictness.  It  will  be  our  purpose  in  this  chapter, 
in  the  first  place,  to  lay  down  at  least  the  more  important  of 
these  rules,  and  secondly,  to  speak  briefly  of  the  power  of  a 
legislative  body  over  its  members,  and  over  other  persons. 

§  621,  It  is  to  be  observed  in  the  outset  that  when  a 
number  of  persons  come  together,  each  claiming  to  be  a 
member  of  a  legislative  body,  those  persons  who  hold  the 
usual  credentials  of  membership,  are  alone  entitled  to  partici- 
pate in  the  organization.  For  it  is,  as  we  have  had  occasion 
several  times  to  repeat,  a  well  settled  rule,  that  where  there 
has  been  an  authorized  election  for  an  office,  the  certificate  of 
election,  which  is  sanctioned  by  law  or  usage,  is  the  jyrima 
facie  written  title  to  the  office.* 

§  622.  Of  course  the  first  organization  must  be  tem- 
porary, and  if  the  law  does  not  designate  the  person  who 
shall  preside  over  such  temporary  organization,  the  persons 
assembled  and  claiming  to  be  members  may  select  one  of 
their  number  for  that  purpose.  The  next  step  is  to  ascertain 
in  some  convenient  way  the  names  of  the  persons  who  are, 
by  reason  of  holding  the  proper  credentials,  prima  facie 
entitled  to  seats,  and  therefore  entitled  to  take  part  in  the 
permanent  organization  of  the  body.  In  the  absence  of  any 
statutory  or  other  regulation  upon  this  subject,  a  committee 
on  credentials  is  usually  appointed,  to  whom  all  credentials 
are  referred,  and  who  report  to  the  body  a  roll  of  the  names 
of  those  who  are  shown  by  such  credentials  to  be  entitled  to 
seats.  This  report  being  adopted,  the  body  is  prepared  to 
proceed  to  the  election  of  permanent  officers,  by  such  mode 
as  the  rules  of  the  body  may  prescribe. 

§  623.  There  are,  however,  in  this  country  numerous 
statutes,  prescribing  the  mode  of  organizing  legislative 
bodies.     Thus,  it  is  prescribed  by  an  act  of  Congress  that  in 

1  Kerr  v.  Trego,  47  Pa.  St,  293. 


448  ELECTIONS.  [chap.  XIX. 

the  organization  of  the  House  of  Representatives  of  the 
United  States,  the  clerk  of  the  preceding  House  shall  preside 
and  shall  make  up  a  roll  of  members.  He  is  required  to 
place  upon  such  roll  the  names  of  all  persons  claiming  seats 
as  representatives,  from  States  which  were  represented  in  the 
next  preceding  Congress,  and  whose  credentials  show  that 
they  were  regularly  elected  in  accordance  with  the  laws  of 
their  States  respectively — or  the  laws  of  the  United  States. 
In  case  of  a  vacancy  in  the  office  of  clerk,  or  of  his  absence 
»r  inability  to  act,  the  duties  imposed  upon  him  relative 
to  the  preparation  of  the  roll  or  the  organization  of  the 
House  devolve  upon  the  sergeant  at  arms  and  in  case 
of  vacancy  in  both  of  said  offices,  or  the  absence  or  in- 
ability of  both  to  act,  the  said  duties  are  to  be  performed  by 
the  door-keeper  of  the  House.  *  And  by  the  laws  of  most  of 
the  States,  similar  statutory  regulations  are  provided.  Thus, 
in  many  of  the  States  the  Lieutenant  Governor  is  ex  officio 
president  of  the  State  Senate,  and  presides  over  the  organiza- 
tion of  the  new  Senate  which  commences  with  the  expiration 
of  his  term  of  office.  In  most  of  the  States,  the  lower  House 
of  the  General  Assembly  is  required  to  be  called  to  order  by 
the  clerk  of  the  preceding  House,  and  to  be  organized  by 
proceedings  similar  to  those  above  described,  in  the  organi- 
zation of  the  lower  House  of  Congress. 

§  624.  Of  course  no  business  other  than  that  which 
pertains  to  the  organization  of  the  body,  can  be  properly 
transacted  until  after  the  members  have  been  sworn  accord- 
ing to  law.  In  the  absence  of  any  law  designating  the 
person  by  whom  the  oath  of  office  shall  be  administered,  it  is 
usual  to  require  the  services  of  a  jndge  of  one  of  the  higher 
Courts,  and  the  chief  justice  of  the  Supreme  Court  of  the 
State  is  apt  to  be  called  upon  to  discharge  this  duty,  though 
it  is  presumed  that  in  the  absence  of  any  established  rule 
upon  the  subject,  the  oath  may  be  administered  by  any  per- 
son having  authority  to  administer  oaths  generally.  Imme- 
diately upon  the  election  of  a  permanent  presiding  officer, 

1  For  this  statute  in  full,  see  Appendix  to  this  volume. 


CHAP,  XIX,]  LEGISLATIVE   BODIES.  449 

and  upon  his  being  sworn,  it  is  proper  to  proceed  to  call  the 
roll  of  members,  to  the  end  that  each  member,  as  his  name 
is  called,  may  advance  and  take  the  oath  of  office.  In  the 
House  of  Kepresentatives  of  the  United  States,  the  oath  of 
office  is  administered  to  the  Speaker  by  a  member  of  the 
House  (usually  by  that  one  who  has  been  longest  a  member), 
and  the  other  members  are  sworn  in  by  the  Speaker. 

§  625.  The  power  given  to  each  House  of  Congress  to 
"  judge  of  the  election,  returns  and  qualifications  of  its  own 
members "  does  not  authorize  an  inquiry  into  the  moral 
character  of  a  person  elected  and  returned  as  a  member. 
Such  an  inquiry  can  only  be  made,  if  at  all,  in  the  prosecu- 
tion of  proceedings  for  expulsion.  The  term  "  qualifications," 
as  used  in  the  Constitution,  means  the  constitutional  qualifi- 
cations, to  wit,  that  the  person  elected  shall  have  attained 
the  age  of  twenty-five  years,  been  seven  years  a  citizen  of 
the  United  States,  and  shall  be  an  inhabitant  of  the  State  in 
which  he  shall  be  chosen.^  [But  a  Territorial  delegate  to  the 
House  of  Eepresentatives  is  not,  strictly  speaking,  a  member 
of  the  House.  He  has  no  rights  under  the  Federal  Constitu- 
tion to  a  seat,  and,  being  entirely  a  creature  of  the  statute, 
the  House  may  inquire  into  his  moral  character  and  exclude 
him  if  he  be  judged  unfit  to  hold  a  seat  as  delegate.  In  ac- 
cordance with  this  principle,  the  contestant  in  Cannon  v, 
Campbell  ^  was  excluded  for  the  reason  that  he  was  a  polyg- 
amist.] 

§  626.  Notwithstanding  the  fact  that  these  rules  and 
regulations  governing  the  organization  of  legislative  bodies 
are  well  settled  and  generally  understood,  it  will  sometimes 
occur  that  an  organization  may  not  be  effected  without  great 
delay  and  difficulty,  and  it  has  occasionally  happened  that 
two  bodies  have  organized  and  elected  officers,  being  nearly 
equal  in  point  of  numbers,  and  each  claiming  to  be  the  law- 
ful organization.  Nor  has  the  lower  House  of  Congress  al- 
ways been  able  to  organize  without  delay  or  difficulty.  In 
the  Twenty-sixth  Congress,  the  clerk  of  the  House  undertook 

1  Maxwell  v.  Cannon,  43d  Congress  [Smith,  183].    2  [2  Ells,,  604] 


450  ELECTIONS.  [chap.  XIX. 

to  omit  from  the  roll  both  the  claimants  for  each  of  several 
contested  seats,  and  by  this  action  the  organization  was  de- 
layed for  some  ten  days.  In  this  he  was  clearly  wrong,  for 
it  was  his  duty  to  place  upon  the  roll  the  names  of  the  per- 
sons holding  proper  certificates  of  election,  without  regard  to 
the  question  whether  the  seats  of  any  such  persons  were  to 
be  contested.  In  the  thirty-first,  thirty-fourth,  and  thirty- 
sixth  Congresses,  the  organization  of  the  House  was  delayed 
by  reason  of  the  failure  of  a  majority  of  the  members  to  vote 
for  any  candidate  for  speaker,  thus  preventing  an  election. 
Delay  from  this  cause  may  frequently  occur,  and  can  not  be 
prevented,  so  long  as  the  votes  of  a  majority  of  members  are 
required  to  elect  a  speaker.  It  was  found  necessary,  in  the 
thirty-first  and  thirty-fourth  Congresses,  to  adopt  the  plural- 
ity rule  in  the  election  of  a  speaker,  for  the  reason  that  the 
majority  seemed  altogether  unable  to  agree  upon  any  person 
for  that  office.  This  was  effected  by  a  resolution  of  the  House, 
authorizing  an  election  of  speaker  by  a  plurality,  and  after- 
wards by  the  passage  of  a  confirmatory  resolution,  declaring 
him  "duly  elected." * 

§  627.  In  case  of  a  division  of  a  legislative  body,  that 
ought  to  be  a  unit,  it  becomes  important  to  determine  which 
is  the  legal,  and  which  the  illegal  assembly.  In  such  a  case 
the  true  test  is  this:  thai  is  the  legal  organization  which  has 
"  maintained  the  regular  forms  of  organization,  according  to 
the  laws  and  usages  of  the  body,  or  in  the  absence  of  these, 
according  to  the  laws,  customs  and  usages  of  similar  bodies 
in  like  cases,  or  in  analogy  to  them."*  This  rule  afibrds  the 
best  possible  test  of  legitimate  organization. 

In  all  cases  where  part  of  a  legislative  body  remains,  and 
where  the  body  is  to  be  completed  by  the  receptio'n  of  new 
members,  the  old  members  who  hold  over  remain  as  an 
organized  nucleus,  which  receives  the  new  members,  when 
the  whole  body  proceeds  to  the  exercise  of  all  its  functions. 
The  new  members,  though  they  be  in  the  majority,  must 
meet  with  the  old  at  the  time  and  place  fixed  by  law,  and 

1  Barclay's  Dig.,  126. 

2  Kerr  v.  Trego,  supra. 


CHAJt\  XIX.]  LEGISLATIVE   BODIES.  451 

proceed  regulariy  with  the  organization  of  the  body,  and  they 
cannot  assemble  elsewhere  and  organize  the  body.  They 
must  join  themselves  to  the  existing  body,  for  the  members 
holding  over,  though  they  may  be  in  the  minority,  and  not 
sufficiently  numerous  to  constitute  a  quorum,  are  yet  the 
bc/dy,  for  the  purposes  of  receiving  the  new  members  and 
acting  as  the  organs  of  reorganizing  the  body.  And  this 
principle  applies,  and  often  becomes  very  important,  in  those 
cases  where  but  a  single  officer  of  the  preceding  body  holds 
over,  and  is  authorized  to  take  charge  of  the  organization  of 
the  new  body.  Thus,  as  we  have  seen,  the  Clerk  of  the  pre- 
vious House  of  Representatives  of  the  United  States,  is 
authorized,  by  law,  to  preside  at  the  organization  of  the  new 
House,  and  he  is,  therefore  (unless  he  be  absent,  or  incapaci- 
tated, or  the  office  be  vacant,  in  which  cases  the  law  provides 
a  substitute),  the  only  person  who  can  take  charge  of  the  or- 
ganization. Even  if  a  quorum  of  the  House  should  refuse 
to  recognize  him,  and  should  choose  another  to  preside  over 
the  organization,  that  action  would  be  null  and  void. 

It  is  apparent  that  this  rule  will,  if  adhered  to,  ensure  a 
legal  organization  and  prevent  a  schism  of  the  body,  in  every 
case,  though  the  process  of  organization  may,  in  some  cases, 
be  tardy.  It  may  be  urged  that  this  rule  puts  too  much 
power  in  the  hands  of  the  person  or  persons  who  are  em- 
powered to  prepare  a  roll  of  members,  and  take  charge  of 
the  organization ;  but  the  answer  is,  that  whatever  of  incon- 
venience or  hardship  may  result  from  this  rule,  can  not  be 
weighed  against  the  advantages  of  securing  a  regular  and 
legal  organization,  and  avoiding  the  possibility  of  division, 
disorganization,  and  conflict.  Besides,  the  majority  can 
always,  by  legal  and  orderly  means,  correct  errors  and  redress 
wrongs,  if  any  are  attempted  upon  their  rights. 

§  628.  In  the  event  that  a  municipal  or  legislative  body 
which  ought  to  be  a  unit,  divides  into  two  separate  bodies, 
each  claiming  to  be  the  legitimate  and  legal  organization, 
what  is  the  remedy  by  which  the  authority  of  the  lawful 
body  may  be  maintained,  and  the  unlawful  body  be  re- 
strained from  assuming  and  attempting  to  exercise  functions 


452  ELECTIONS.  [chap.  XIX.. 

which  do  not  belong  to  it  ?  In  considering  this  question,  we 
must  keep  in  view  the  fact  that  there  are  two  classes  of  legis- 
lative bodies,  to-wit:  those  which  are  supreme,  and  those 
which  are  subordinate.  To  the  former  class  belong  the  Con- 
gress of  the  United  States,  and  the  legislatures  of  the  several 
States.  These  represent  the  supreme  legislative  power  of  the 
nation  or  of  the  State.  To  the  latter  class  belong  the  com- 
mon councils  of  cities  and  towns,  and  other  similar  municipal 
legislative  bodies.  These  are  under  law^  and  subordinate  to 
the  judgments  and  orders  of  the  courts  of  justice. 

For  a  failure  to  organize  a  supreme  legislature,  there  is  no 
remedy  which  courts  of  justice  can  administer;  and  this  fact 
makes  it  all  the  more  important  that  the  rules  which  have 
been  established  to  prevent  such  failure,  and  avoid  the  an- 
archy, confusion,  and  possible  bloodshed,  which  might  ensue, 
should  be  adhered  to.  As  to  subordinate  legislatures,  such 
as  are  not  supreme,  but  subject  to  the  jurisdiction  of  the 
judiciary,  it  has  been  held  that  an  illegal  body  may  be  re- 
strained by  injunction,  from  acting.  In  the  case  of  Kerr  v. 
TregOy  supra^  the  Supreme  Court  of  Pennsylvania  discussed 
the  question  of  the  remedy  for  these  evils,  as  follows: 

"  Have  the  Courts  authority  to  redress  this  wrong  ?  We 
think  they  have.  All  bodies,  except  the  supreme  legislature, 
are  under  lawy  and  therefore,  for  all  transgressions  of  law 
are  subject  to  the  authority  of  the  judicial  power  established 
by  the  constitution.  The  corporation  itself  is  subject  to  this 
authority,  so  far  as  its  acts  are  directed  by  law,  though  it  is 
not,  and  can  not  be  so,  in  so  far  as  it  is  itself  a  law-making 
power;  in  so  far  as  its  judgment  and  discretion  are  uncon- 
trolled by  the  law  of  the  land,  it  is  free  from  the  control  of 
the  courts;  but  in  so  far  as  its  acts  are  directed  by  law,  it  is 
subject  to  the  judicial  authority;  much  more,  then,  are  its 
officers  subject  to  this  authority,  and  especially  those  that 
pretend  to  act  as  its  officers,  without  right,  and  as  there  can 
not  be  two  common  councils,  one  of  these  bodies  must  be  a 
mere  pretender  to  the  right  to  act  as  such.    May  the  wrong- 


CHAP.  XIX.]  LEGISLATIVE   BODIES.  453 

ful  party  be  restrained  from  acting  by  the  means  of  the 
equitable  remedy  of  injunction?  We  think  it  may;  this 
remedy  extends  to  all  acts  that  are  contrary  to  law,  and 
prejudicial  to  the  interests  of  the  community,  and  for  which 
there  is  no  adequate  remedy  at  law;  and  we  can  hardly  im- 
agine any  act  that  more  clearly  falls  within  this  description 
than  one  that  casts  so  deep  a  shade  of  doubt  and  confusion 
on  the  public  affairs  of  a  city  as  this  does.  In  such  a  case 
no  remedy  is  adequate  that  is  not  prompt  and  speedy  as  this 
one.  If  a  private  partnership  or  corporation  were  to  fall 
into  similar  confusion  affecting  all  its  members,  and  all  its 
creditors,  we  can  think  of  no  better  remedy  than  this  for 
staying  the  confusion  that  would  be  caused  by  two  opposite 
parties  pretending  to  act  as  the  society.  It  is  the  very 
remedy  usually  adopted  when  churches  divide  into  parties, 
and  we  have  applied  it  in  three  such  eases  in  the  last  year; 
therein  we  decided  directly  on  rights  of  property^  because 
that  became  the  aim  of  dispute;  here  we  must  decide  on  the 
right  to  -^whWQ  functions,  because  that  is  here  the  purpose  of 
the  dispute.  The  main  question  in  all  such  cases  is  regular- 
ity of  organization,  and  the  right  to  functions  and  property 
is  a  mere  consequence  of  this.  May  one  of  the  conflicting 
bodies,  or  the  members  of  it,  maintain  this  action  against 
the  other?  We  think  they  may;  this  could  not  be  doubted' 
in  relation  to  private  corporations  and  partnerships ;  but  it  ist 
argued  that  in  relation  to  public  corporations  the  attorney, 
general  alone  can  file  such  a  bill;  we  do  not  think  so;  it  is  a 
right  for  those  to  whom  public  functions  are  entrusted,  to» 
see  that  they  are  not  usurped  by  others.  Either  of  thesei 
bodies  has  the  right  to  demand  of  the  courts  that  it,  and  all 
the  interests  of  the  public  alleged  to  be  committed  to  it, 
shall  be  protected  against  the  usurpation  of  the  other.  We 
decided  a  similar  principle  in  Mott  v.  The  Railroad^^  and 
we  need  say  no  more  about  it  now.     This  case  is,  therefore, 

1 80  Pa.  Stn  8. 


454  ELECTIONS.  [cfiAl».  XlX 

regularly  before  ns,  and  we  proceed  to  the  consideration  of 
it,  premising  that  there  is  no  material  fact  in  dispute,  and 
that  we  have  no  authority  to  decide  directly  upon  the  validity 
of  the  election  of  any  one  of  the  claiming  members." 

§  629.  Inasmuch  as  Senators  of  the  United  States  are 
chosen  in  each  State  by  the  legislature  thereof,  it  is  manifest 
that  the  Senate  may  sometimes  find  it  necessary  to  inquire 
and  determine  whether  a  body  claiming  to  be  the  legislature 
of  a  State  is  in  fact  such.  If  two  bodies  have  organized, 
each  claiming  to  be  the  legislature,  and  each  has  elected  a 
Senator,  of  course  the  Senate,  in  order  to  decide  between 
them,  must  inquire  and  determine  which  was  the  legis- 
lature. Such  a  case  arose  in  Sykes  v.  Spencer^  in  the 
Senate  of  the  United  States.*  And  in  determining,  that 
case  the  Senate  of  the  United  States  laid  down  a  rule 
which  may  at  first  appear  to  be,  but  which  is  not  in  reality, 
in  conflict  with  the  doctrine  we  have  been  considering  in  the 
{)receding  sections  of  this  chapter.  The  contest  between  the 
two  legislatures  in  this  case  depended  upon  this:  In  one 
body  were  eight  or  nine  members  who  had  received  regular 
certificates  of  election,  but  who  were  conceded  not  to  have 
been  elected,  while  in  the  other  was  found  an  equal  number 
of  persons  duly  elected,  but  without  certificates  of  election. 
To  make  a  quorum  of  the  former  body,  it  was  necessary  to 
count  the  persons  holding  certificates,  but  not  elected,  and  to 
make  a  quorum  of  the  latter,  it  was  necessary  to  count  the 
members  duly  elected,  but  without  certificates.  The  former 
body  was  called  the  State  house  legislature,  while  the  latter 
was  called  the  court  house  legislature.  The  Senate  held  that 
the  body  having  a  quorum  of  members  in  fact  duly  elected, 
should  be  regarded  as  the  legislature  of  the  State,  for  the 
purpose  of  electing  the  Senator  in  Congress,  and  the  grounds 
of  this  decision  are  thus  stated  in  the  committees*  report, 
submitted  by  Senator  Carpenter  of  Wisconsin: 

•  Forty-third  Congress,  Ist  Sess.  Report  No.  291. 


OHAP.  XIX.]  LEGISLATIVB   BODIES.  455 

"  The  matifci,  then,  comes  to  thid:  The  State  house  legis- 
lature was  the  legislature  in  form,  and  the  court  house 
legislature  was  the  legislature  in  fact.  While  these  two 
pretended  legislatures  were  in  existence,  each  claiming  to 
possess  the  legislative  power  of  the  State,  Spencer  was  elected 
to  the  Senate  by  the  court  house  legislature,  and  Sykes  was 
elected  by  the  State  house  legislature.  Spencer  was  first 
elected,  and  on  the  day  of  his  election  the  court  house  legis- 
lature was  recognized  by  the  governor  as  the  legal  legislature 
of  the  State.  Therefore,  in  determining  as  to  the  right  of 
Spencer  or  Sykes  to  this  seat,  the  Senate  is  compelled  to 
choose  between  the  body  in  fact  elected,  organized,  acting, 
and  recognized  by  the  executive  department  as  the  legisla- 
ture, and  another  body,  organized  in  form,  but  without  the 
election  and  without  a  recognition  on  the  part  of  the  execu- 
tive of  the  State  at  the  time  they  pretended  to  elect  Sykes. 
When  we  consider  that  all  the  forms  prescribed  by  law  for 
canvassing  and  certifying  an  election,  and  for  the  organisation 
of  the  two  houses,  are  designed  to  secure  to  the  persona 
actually  elected  the  right  to  act  in  the  offices  to  which  in 
fact  they  have  been  elected,  it  would  be  sacrificing  the  end 
to  the  means,  were  the  Senate  to  adhere  to  the  mere  form, 
and  thus  defeat  the  end  which  the  forms  were  intended  to 
secure. 

"  The  persons  in  the  two  bodies  claiming  to  be  the  Senate 
and  House  of  Kepresentatives  who  voted  for  Spencer,  con- 
stituted a  quorum  of  both  Houses  of  the  members  actually 
elected;  the  persons  in  the  State  House  legislature  who  voted 
for  Sykes  did  not  constitute  a  quorum  of  the  two  Houses 
duly  elected,  but  a  quorum  of  persons  certified  to  have  been 
elected  to  the  two  Houses.  Were  the  Senate  to  hold  Sykes' 
election  to  be  valid,  it  would  follow  that  erroneous  certificates, 
delivered  to  men  conceded  not  to  be  elected,  had  enabled 
persons  who  in  fact  ought  not  to  vote  for  a  Senator  to  elect  a 
Senator  to  misrepresent  the  State  for  six  years.  On  the 
other  hand,  if  we  treat  the  court  house  legislature  as  the 


4:56  *  ELECTIONS.  [chap.  XIX. 

legal  legislature  of  the  State,  it  is  conceded  that  we  give 
effect  to  the  will  of  the  people  as  evidenced  by  the  election. 
So  that,  to  state  the  proposition  in  other  words,  we  are  called 
upon  to  choose  between  the  form  and  the  substance,  the 
fiction  and  the  fact;  and,  considering  the  importance  of  the 
election  of  a  Senator,  in  the  opinion  of  your  committee  the 
Senate  would  not  be  justified  in  overriding  the  will  of  the 
people,  as  expressed  by  the  ballot-box,  out  of  deference  to 
certificates  issued  erroneously  to  persons  who  were  not 
elected. 

"  In  the  opinion  of  your  committee  it  is  not  competent  for 
the  Senate  to  inquire  as  to  the  right  of  individual  members 
to  sit  in  a  legislature  which  is  conceded  to  have  a  quorum  in 
both  houses  of  legally  elected  members.  But,  undoubtedly, 
the  Senate  must  always  inquire  whether  the  body  which 
pretended  to  elect  a  Senator  was  the  legislature  of  the  State 
or  not;  because  a  Senator  can  only  be  elected  by  the  legisla- 
ture of  a  State.  In  this  case,  Spencer  having  been  seated  by 
the  Senate,  and  being  prima  facie  entitled  to  hold  the  seat, 
the  Senate  can  not  oust  him  without  going  into  an  inquiry 
in  regard  to  the  right  of  the  individual  persons  who  claim  to 
constitute  the  quorum  in  these  respective  bodies  at  the 
Court  House  and  at  the  State  House.  We  can  not  oust 
Spencer  from  his  seat  without  inquiring  and  determining 
that  the  eight  or  nine  individuals  who  were  elected  were  not 
entitled  to  sit  in  the  legislature  of  the  State,  because  they 
lacked  the  certificates.  But  if  the  Senate  can  inquire  into 
this  question  at  all,  it  must  certainly  inquire  for  the  fact 
rather  than  the  evidence  of  the  fact.  It  can  not  be  main- 
tained that  when  the  Senate  has  been  compelled  to  enter 
upon  such  an  examination  it  is  estopped  by  mere  prima  facie 
evidence  of  the  fact,  and  the  certificate  is  conceded  to  be 
nothing  more  than  prima  facie  evidence.  But  the  Senate 
must  go  back  of  that  to  the  fact  itself,  and  determine  whether 
the  persons  claiming  to  hold  seats  were  in  fact  elected. 
When  we  do  this  we  come  to  the  conceded  fact  that  these 


CHAP.  XIX.]  LEGISLATIVE   BODIES.  457 

persons,  lacking  the  certificate,  had  in  fact  been  elected,  and 
that  the  persons  who  claimed  to  be  a  quorum  of  the  two 
houses  were  in  fact  the  persons  who,  in  virtue  of  the  election, 
were  entitled  to  constitute  the  quorum  of  both  houses." 

§  630.  The  case  here  decided  was  without  an  exact  prece- 
dent in  the  history  of  contested  seats  in  the  United  States 
Senate.  It  was,  of  course,  insisted  in  opposition  to  the  doc- 
trine of  the  report  that  the  Senate  was  bound  to  recognize  as 
the  legislature  of  Alabama,  that  body  which  consisted  of  a 
quorum  of  members  holding  the  usual  prima  fade  evidence 
of  election  thereto.  But  the  answer  to  this  was  that  the 
Senate  may  in  such  a  case  as  this,  inquire  into  the  question 
who  in  fact  composed  the  legislature,  and  shall  not  be  con- 
cluded by  the  prima  facie  evidence  by  which  a  legislative 
body  in  organizing  itself  ought  to  be  bound.  There  was  an 
important  fact  in  the  case,  of  which  we  are  speaking,  which 
must  not  be  overlooked.  The  two  bodies  did  not  remain 
separated,  but  came  together,  and  after  uniting  and  forming 
a  legislature,  about  the  legality  of  which  there  was  no  ques- 
tion, they  adjudicated  the  question  concerning  the  several 
contested  seats  in  favor  of  the  persons  who  sat  in  the  court 
house  body,  which  elected  Mr.  Spencer.  So  that  the  legis- 
lature of  Alabama  itself  having  adjudicated  this  question,  it 
become  in  the  Senate  of  the  United  States  simply  a  question 
whether  effect  should  be  given  to  the  votes  of  persons  who 
had  in  fact  no  right  to  vote.  This  precedent  should  not  be 
extended  beyond  the  case  decided,  and  therefore  all  the  facts 
should  be  kept  in  view.  It  is  believed  that  the  case  was 
well  decided  upon  the  following  rule,  to- wit: 

Where  a  State  legislature,  which  ought  to  be  a  nnit,  is 
divided  into  two  bodies,  one  of  which  is  composed  of  a  ma- 
jority of  the  members  elected,  but  not  a  majority  of  the  mem- 
bers returned,  if  this  body  assumes  to  be  the  legislature,  and 
as  such  elects  a  Senator  in  Congress,  and  if  afterwards  the 
two  bodies  unite,  the  validity  of  such  election  of  Senator 
will  depend,  not  upon  the  question  whether  the  persons  com- 


458  ELECTIONS.  [chap.  XIX. 

posing  that  body  were  priTna  facie  entitled  to  the  office,  but 
\ipon  the  question  whether  they  were  in  fact  so  entitled. 
"WTiether  this  rnle  would  apply  where  the  two  bodies  re- 
tnained  permanently  separated,  was  not  decided,  for  the 
question  did  not  arise.  That  it  should  apply  to  a  case  like 
the  one  under  consideration,  is  manifest  from  the  considera- 
tion that  to  adopt  the  opposite  rule  would  be  in  effect  to  say 
that  a  minority  of  the  members  elected,  the  consolidated 
legislature  being  itself  the  judge  as  to  who  was  and  who  was 
not  elected,  shall  be  held  to  have  composed  the  legislature. 

This  would  be  to  put  the  form  above  the  substance,  and 
to  sacrifice  the  real  merits  out  of  regard  to  the  first  appear- 
ances, and  regardless  of  the  fact  that  the  prima  facie  evidence 
of  title  to  seats,  upon  which  alone  such  a  decision  could  be 
based,  has  been  set  aside  and  overcome  by  subsequent  proof. 

But  it  may  be  said  that  the  six  persons  holding  certificates, 
but  not  elected,  should  have  been  regarded  as  members  of  the 
legislature  de  facto ^  and  their  acts  as  such  held  valid  until 
they  were  unseated  by  a  contest.  Here  again  is  a  misappli- 
cation of  a  well  settled  rule. 

The  election  of  a  Senator  in  Congress  is  not  in  the  nature 
of  an  ordinary  legislative  act;  it  is  an  election,  and  not  the 
enactment  of  a  law.  Of  the  validity  and  hona  fides  of  such 
an  election  the  Senate  of  the  United  States  is  the  sole  and 
exclusive  judge. 

The  cases  in  which  the  official  acts  or  votes  of  members  of 
a  legislative  body  who  are  such  de  facto  only,  and  not  dejure, 
have  been  held  valid,  are  all  cases  in  which  there  was  no 
question  as  to  the  legality  of  the  hody  in  which  they  sat. 
They  are  cases  in  which  the  body  admitting  such  persons 
was,  in  doing  so,  acting  within  its  admitted  jurisdiction,  and 
in  such  cases  the  courts  will  not  inquire  into  the  title  of  such 
members  to  their  seats.  The  courts,  in  such  cases,  will  go 
no  further  than  to  inquire  as  to  the  legal  status  and  authority 
of  the  body  as  a  whole,  but  where  there  are  two  bodies,  each 
claiming  to  be  the  legislature,  then  the  Court,  whose  duty  it 


CHAP.  XIX.]  LEGISLATIVE   BODIES.  48& 

is  to  respect  and  execute  the  acts  of  snch  legislature,  must  of 
necessity  decide  which  is  the  legislature. 

§  631.  From  these  considerations  it  is  apparent  that  the 
case  of  Sykea  v.  Spencer,  is  not  in  conflict  with  the  rule  that 
in  the  organization  of  legislative  bodies,  persons  holding  the 
usual  credentials  are  alone  authorized  to  act;  nor  is  it  in  con- 
flict with  the  general  doctrine  that  the  acts  of  a  member  of 
a  legislative  body  who  is  such  de  facto  only,  are  valid.  It 
goes  no  further  than  to  hold  that  the  particular  election  in 
question,  though  perhaps  irregular,  was  not  void;  that  it  was 
by  the  action  of  the  consolidated  and  legal  legislature,  shown 
to  have  been  an  election  by  the  quorum  of  members  duly 
elected  to  the  legislature;  and  that  the  Senate  of  the  United 
States  acting  as  sole  judge  of  said  election,  might  with  pro- 
priety admit  to  a  seat  the  person  chosen  at  said  election. 

§  632.  A  legislative  body  has  power  to  preserve  order  and 
decorum,  enforce  its  rules,  and  prevent  or  punish  any  breach 
of  decorum  or  of  the  privileges  of  the  body  or  of  any  of  its 
members.  Mr.  Gushing  in  his  manual  of  parliamentary 
practice,  in  speaking  of  the  rights  and  duties  of  members  of 
a  deliberative  assembly,  says:  "The  only  punishments  which 
can  be  inflicted  upon  its  members  by  a  deliberative  assembly 
of  the  kind  now  under  consideration  consist  of  reprimanding, 
exclusion  from  the  assembly,  a  prohibition  to  speak  or  vote 
for  a  specified  time,  and  expulsion ;  to  which  are  to  be  added 
such  other  forms  of  punishment  as  by  apology,  begging  par- 
don, etc.,  as  the  assembly  may  see  fit  to  impose,  and  to  re- 
quire the  ofi'euder  to  submit  to  on  pain  of  expulsion."  ^ 

§  633.  A  member  may  be  accused  or  complained  of  by 
any  other  member,  or  by  the  presiding  ofiicer,  and  it  is  the 
duty  of  the  latter  to  make  such  complaint  to  the  House,  in 
case  any  member  is  guilty  of  irregular  and  disorderly  deport- 
ment in  the  course  of  the  sessions  of  the  body.  When  a 
complaint  of  this  kind  is  made,  the  offender  is  named,  that 

1  Cush.  Man.,  Chap.  8. 


460  ELECTIONS.  [chap.  XIX. 

is  the  announcement  is  made  to  the  assembly,  that  such  a 
member,  calling  him  bj  name,  is  guilty  of  certain  irregular 
and  improper  conduct.  The  accused  member  may  be  heard 
in  his  defense,  and  after  being  heard,  must  withdraw,  while 
the  body  deliberates  upon  the  case,  unless  the  assembly 
resolve  to  allow  him  to  remain.  He  must  not,  however,  in 
any  case,  be  allowed  to  vote  on  his  own  case,  "  it  being," 
says  Mr.  Gushing,  "contrary  not  only  to  the  laws  of  decency, 
but  to  the  fundamental  principles  of  the  social  compact,  that 
a  man  should  sit  and  act  as  a  judge  in  his  own  case." 

§  634.  The  power  of  the  two  Houses  of  Congress  over  their 
members  is  derived  from  Article  1,  Section  5,  of  the  Constitu- 
tion, which  provides:  "Each  House  may  determine  the  rules 
of  its  proceedings;  punish  its  members  for  disorderly  behavior, 
and  with  the  concurrence  of  two-thirds,  expel  a  member." 
The  question  has  been  much  discussed,  whether  a  member 
may  be  punished  or  expelled  for  an  act  or  acts  done  prior  to 
his  election.  The  question  seems  first  to  have  arisen  in  the 
case  of  Senator  Marshall,  of  Kentucky.  (1804.)  The  Senate 
in  that  case  refused  to  take  jurisdiction,  for  the  reason, 
among  others,  that  the  alleged  offense  had  been  committed 
prior  to  the  Senator's  election,  and  was  matter  cognizable  by 
the  criminal  courts  of  Kentucky.  But  the  doctrine  of  this 
case  was  antagonized  by  the  report  submitted  to  the  Senate 
by  John  Quincy  Adams,  in  December,  1807,  in  the  case  of 
Senator  John  Smith,  of  Ohio,  who,  after  his  election,  but  not 
during  the  session  of  the  Senate,  had  been,  as  was  alleged, 
involved  in  the  treasonable  conspiracy  of  Aaron  Burr.  In 
this  latter  case  it  was  held  that  the  power  to  expel  should  be 
used  as  a  means  of  relieving  the  body  of  the  presence  of 
corrupt  or  infamous  persons.     The  report  says: 

"The  power  of  expelling  a  member  for  misconduct  results, 
on  the  principles  of  common  sense,  from  the  interests  of  the 
nation  that  the  high  trusts  of  legislation  shall  be  invested  in 
pure  hands.  When  the  trust  is  elective,  it  is  not  to  be  pre- 
sumed that  the  constituent  body  will  commit  the  deposit  to 


CHAP.  XIX.]  -LEGISLATIVE   BODIBS.  461 

the  keeping  of  worthless  characters.  But  when  a  man  whom 
his  fellow  citizens  have  honored  with  their  confidence  on  a 
pledge  of  a  spotless  reputation,  has  degraded  himself  by  the 
commission  of  infamous  crimes,  which  become  suddenly  and 
unexpectedly  revealed  to  the  world,  defective  indeed  would 
be  that  institution  which  should  be  impotent  to  discard  from 
its  bosom  the  contagion  of  such  a  member;  which  should 
have  no  remedy  of  amputation  to  apply  until  the  poison  had 
reached  the  heart." 

§  635.  The  question  was  again  raised  in  the  case  of 
Matteson  in  the  35th  Congress.  The  charges  against  Mr. 
Matteson  had  been  preferred  in  the  previous  Congress,  and 
a  committee  of  investigation  had  reported  against  him, 
recommending  his  expulsion.  Pending  these  resolutions  he 
had  resigned,  having,  however,  at  the  time  of  his  resignation 
been  re-elected.  When  he  took  his  seat  in  the  new  Congress 
by  virtue  of  such  re-election,  the  charges  were  renewed. 
A  majority  of  the  committee  reported  adversely  to  the  juris- 
diction of  the  House.  In  the  report,  as  well  as  in  the 
debate,  the  want  of  jurisdiction  was  based  upon  various 
grounds,  and  among  them,  upon  the  ground  that  the  offense 
was  committed  prior  to  the  election  of  the  accused  member. 
After  a  long  debate  the  whole  subject  was  laid  upon  the 
table,  so  that  it  cannot  be  said  that  the  question  was  authori- 
tatively determined,  one  way  or  the.  other.  Thus  the  question 
stood,  when  the  whole  controversy  came  up  anew  upon  the 
report  of  the  special  committee  to  investigate  the  alleged 
Credit  Mobilier  bribery.  This  investigation  took  place  in 
the  forty-second  Congress,  and  related  chiefly  to  transactions 
of  members  of  the  fortieth  Congress.  The  report  of  this 
case  discusses  the  question  at  length,  and  concludes  that  the 
power  to  expel  is  not  limited  to  those  cases  where  the  accused 
has  been  guilty  of  misconduct  as  a  member,  and  subsequent 
to  his  election.     From  this  report  we  quote  as  follows: 

"  It  is  universally  conceded,  we  believe,  that  the  House 
has  ample  jurisdiction  to  punish  or  expel  a  member  for  an 


462  ELECTIONS.  [chap.  XIX. 

offense  committed  during  his  term  as  a  member,  though 
committed  during  a  vacation  of  Congress  and  in  no  way 
connected  with  his  duties  as  a  member.  Upon  what  principle 
is  it  that  such  a  jurisdiction  can  be  maintained?  It  must  be 
upon  one  or  both  of  the  following:  that  the  offense  shows 
him  to  be  an  unworthy  and  improper  man  to  be  a  member, 
or  that  his  conduct  brings  odium  and  reproach  upon  the 
body.  But  suppose  the  offense  has  been  committed  prior  to 
his  election,  but  comes  to  light  afterward,  is  the  effect  upon 
his  own  character,  or  the  reproach  and  disgrace  upon  the 
body,  if  they  allow  him  to  remain  a  member,  any  the  less? 
We  can  see  no  difference  in  principle  in  the  two  cases,  and  to 
attempt  any  would  be  to  create  a  purely  technical  and  arbi- 
trary distinction,  having  no  just  foundation.  In  our  judg- 
ment, the  time  is  not  at  all  material  except  it  be  coupled 
with  the  further  fact  that  he  was  re-elected  with  a  knowledge 
on  the  part  of  his  constituents  of  what  he  had  been  guilty, 
and  in  such  event  we  have  given  our  views  of  the  effect. 

"  It  seems  to  us  absurd  to  say  that  an  election  has  given  a 
man  political  absolution  for  an  offense  which  was  unknown 
to  his  constituents.  If  it  be  urged  again,  as  it  has  sometimes 
been,  that  this  view  of  the  power  of  the  House,  and  the  true 
ground  of  its  proper  exercise,  may  be  laid  hold  of  and  used 
improperly,  it  may  be  answered  that  no  rule,  however  narrow 
and  limited,  that  may  be  adopted,  can  prevent  it.  If  two- 
thirds  of  the  House  shall  see  fit  to  expel  a  man  because  they 
do  not  like  his  political  or  religious  principles,  or  without 
any  reason  at  all,  they  have  the  power,  and  there  is  no 
remedy  except  by  appeal  to  the  people.  Such  exercise  of 
the  power  would  be  wrongful,  and  violative  of  the  principles 
of  the  Constitution,  but  we  see  no  encouragement  of  such 
wrong  in  the  views  we  hold. 

"  It  is  duty  of  each  House  to  exercise  its  rightful  func- 
tions upon  appropriate  occasions,  and  to  trust  that  tl.ose  who 
come  after  them  will  be  no  less  faithful  to  duty,  and  no  less 
jealoQB  for  the  rights  of  free  popular  representation  than 


CHAP.  XIX.]  LEGISLATIVE   BODIES.  463 

themselves.  It  will  be  quite  time  enough  to  square  other 
cases  with  right  reason  and  principle,  when  they  arise. 
Perhaps  the  best  way  to  prevent  them,  will  be  to  maintain 
strictly  public  integrity  and  public  honor  in  all  cases  as  they 
present  themselves.  Nor  do  we  imagine  that  the  people  of 
the  United  States  will  charge  their  servants  with  invading 
their  privileges,  when  they  confine  themselves  to  the  preser- 
vation of  a  standard  of  official  integrity  which  the  common 
instincts  of  humanity  recognize  as  essential  to  all  social  order 
and  good  government." 

§  636.  Precisely  the  opposite  doctrine  was,  however, 
maintained  in  a  report  made  to  the  House,  from  the  commit- 
tee on  the  judiciary,  by  Mr.  Butler,  of  Massachusetts,  and 
which  was  submitted  within  a  few  days  after  that  of  the 
Credit  Mobilier  investigating  committee  just  quoted  from.* 
The  question  now  under  consideration  entered  very  largely 
into  the  debate  upon  the  report  of  the  Credit  Mobilier  inves- 
tigating committee,  and  at  the  close  of  that  debate  Mr.  Sar- 
geant,  of  California,  offered  a  substitute  for  the  pending 
resolutions,  which  substitute  proposed  to  change  the  punish- 
ment of  the  accused  members  from  expulsion,  to  condemna- 
tion and  censure.  This  substitute  consisted  of  two  resolutions, 
md  the  following  preamble: 

"Whereas,  by  the  report  of  the  special  committee  herein, 
it  appears  that  the  acts  charged  as  offenses  against  members 
of  this  House,  in  connection  with  the  Credit  Mobilier  of 
America,  occurred  more  than  five  years  ago,  and  long  before 
the  election  of  such  persons  to  this  Congress,  two  elections 
by  the  people  having  intervened,  and  whereas  grave  doubts 
exist  as  to  the  rightful  exercise  by  this  House  of  its  power 
to  expel  a  member  for  offenses  committed  by  such  member 
long  before  his  election  thereto,  and  not  connected  with  such 
election.  Therefore,"  etc.  The  resolutions  of  condemnation 
and  censure,  following  this  preamble,  were  first  voted  upon 

*  Cong.  Globe,  Third  Session,  42d  Congress,  p&tX  S,  p.  1651. 


464 


ELECTIONS.  [chap.  XIX. 


and  were  adopted  by  the  House.  A  separate  vote  was  then 
taken  on  the  adoption  of  the  preamble,  and  it  was  lost  by  a 
vote  of  ninety-eight  yeas  to  one  hundred  and  thirteen  nays.  * 
Thus  the  House  decided  to  sustain  the  doctrine  contended 
for  by  the  special  committee,  and  against  the  doctrine  laid 
down  in  the  above  mentioned  report  from  the  committee  on 
the  judiciary.  It  may,  therefore,  be  said  that  the  House  has 
fairly  decided  the  question,  and  has  held  that  a  member  may 
be  expelled  or  punished  for  ojffenses  committed  prior  to  his 
election,  especially  if  those  offenses  were  unknown  to  his  con- 
stituents at  the  time  of  his  election.  It  will  of  course  occur 
to  every  one  that  this  is  a  power  which  should  be  exercised 
with  great  circumspection  and  moderation,  and  with  a  due  re- 
gard to  the  rights  both  of  constituencies  and  of  individual 
members  of  Congress. 

§  637.  It  is  very  clear  that  either  House  of  Congress 
possesses  the  power  to  punish  for  contempt  of  its  authority* 
The  power  to  punish  for  contempt  of  course  includes  the 
power  to  hold  in  confinement  a  person  summoned  as  a  wit- 
ness in  the  course  of  an  investigation  before  either  House,  or 
before  a  committee  thereof,  and  who  refuses  to  answer  proper 
questions  put  to  him,  by  the  House  or  by  the  committee 
under  the  order  of  the  House.  This  latter  is  not  strictly 
punishment  for  the  contempt,  because  in  such  a  case  the  re- 
cusant witness  may  release  himself  from  confinement  by 
answering,  but  it  is  a  necessary  and  proper  exercise  of  the 
authority  of  the  House  to  compel  the  disclosure  of  all  facts 
within  the  knowledge  of  any  witness  which  affect  the  order, 
the  dignity,  or  the  purity  of  its  legislation.  These  general 
rules  are  well  settled  by  the  authorities.'  As  we  shall 
presently  see  this  power  to  punish  a  witness  for  contempt  in 

>  See  Globe,  Third  Session,  42d  Congress,  pp.  1880  to  1835. 

•  Cooley  on  Const  Lim.,  133 ;  Anderson  v.  Dunn,  6  Wheat,  204 ;  Stock- 
dale  e.  Hansard,  9  Ad.  &  El.,  231;  Burnham  v.  Morrisey,  14  Gray,  226; 
State  «.  Mathews,  37  N.  H.,  450;  Case  of  Irwin,  43d  Congress;  Case  of 
Walcott,  35th  Congress. 


CHAP.  XIX.]  LEGISLATIVE   BODIES.  465 

refusing  to  answer  questions  put  to  him,  is  not  a  general 
power,  but  one  which  exists  only  in  cases  where  the  jurisdic- 
tion of  the  House  is  made  to  appear. 

§  638.  An  examination  of  the  authorities  upon  the  sub- 
ject, will  show  that  not  alone  the  two  Houses  of  Congress, 
but  our  legislative  bodies  generally,  possess  the  power  to 
protect  themselves  by  punishment  for  contempt,  and  by  ex- 
pulsion of  a  member.  This  is  a  power  inherent  in  every 
legislative  body.  The  power  to  punish  contempts  of  its  au- 
thority which  belongs  to  legislative  bodies  in  general,  is  not 
limited  to  the  punishment  of  members,  but  reaches  other 
persons  who  are  shown  to  be  within  the  jurisdiction  of  the 
House,  and  it  belongs  to  each  House  of  our  State  legisla- 
tures, whether  expressly  conferred  by  constitutional  pro- 
vision or  not.  Where,  however,  imprisonment  is  imposed 
by  a  legislative  body  as  a  punishment  for  contempt,  or  as  a 
means  of  compelling  disclosures  by  a  witness,  it  must  termi- 
nate with  the  final  adjournment  of  the  House,  and  if  the 
prisoner  be  not  then  discharged  by  its  order,  he  may  be  re- 
leased on  habeas  corpus.  * 

§  639.  An  act  of  Congress  of  24:th  January,  1857,  pro- 
vides for  the  punishment  by  fine  and  imprisonment,  of 
any  person  who  having  been  summoned  as  a  witness  by  the 
authority  of  either  House  of  Congress,  shall  willfully  make 
default,  or  who  having  appeared  shall  refuse  to  answer  any 
question  pertinent  to  the  question  under  inquiry.  The  said 
act  further  provides  m  the  last  section  thereof  as  follows: 

"That  when  a  witness  shall  fail  to  testify  as  provided  in 
the  previous  sections  of  this  act,  and  the  fact  shall  be  re- 
ported to  the  House,  it  shall  be  the  duty  of  the  Speaker  of 
the  House  or  the  President  of  the  Senate  to  certify  the  fact, 
under  the  seal  of  the  House  or  Senate,  to  the  district  attorney 
for  the  District  of  Columbia,  whose  duty  it  shall  be  to  bring 
the  matter  before  the  grand  jury  for  their  action."* 

*  Jefferson's  Man.,  Sec.  18 ;  Cooley  on  Const.  Lim.,  184. 
>  Rev.  St.  U.  S.,  p.  17. 

30 


^6  ELECTIONS.  [chap.  XIX. 

Under  this  statute  it  has  been  claimed  that  the  Houses  of 
Congress  are  deprived  of  the  power  to  punish  for  contempt, 
and  that  they  have  authority  only  to  report  a  case  of  con- 
tempt to  the  proper  district  attorney  to  be  laid  before  the 
grand  jury.     But  this  is  an  erroneous  view  of  the  effect  of 
the  statute.     Because  a  contempt  of  the  authority  of  the 
House  is  made  by  statute  a  misdemeanor,  it  does  not  thereby 
cease  to  be  a  contempt.     The  power  of  the  House  or  Senate 
U  punish  ceases  with  its  final  adjournment,  and  the  punish- 
ment which  it  may  inflict  is  therefore  often  very  inadequate. 
If  the  offense  is  committed  near  the  close  of  a  Congress,  the 
utmost  that   either    House  can  do,   may  be  to  confine  the 
offender  for  a  few  days  or  possibly  only  for  a  few  hours.     It 
was  for  this  reason,  doubtless,  that  Congress  provided  by  the 
statute  above  named  a  more  effective  remedy  by  indictment. 
This  view  of  the  statute  was  sustained  by  the  criminal  court 
of  the  District  of  Columbia  in  the  case  of  R.  B.  Irwin,  de- 
cided by  Judge  McArthur,  January,  1875.     The  House  of 
Representatives  having  committed  Irwin  to  the  common  jail 
of  the  District  of  Columbia  for  contempt,  in  refusing  to  an- 
swer proper  questions  put  to  him  in  the  course  of  an  investi- 
gation, he  applied  to  said  court  for  release  upon  habeas  corpus, 
and  his  counsel  urged,  as  one  ground  for  his  discharge  from 
imprisonment,  that  under  the  statute  above  mentioned,  the 
House  had  no  power  to  commit  him,  its  authority  over  him 
having  been  exhausted  by  a  certification  of  the  facts  to  the 
district  attorney.     The  court  overruled  this  point  and  in  the 
course  of  his  opinion  the  judge  used  this  language: 

"  It  is  said  that  inasmuch  as  Congress  has  created  the  act 
of  a  witness  refusing  to  answer  a  misdemeanor,  they  have 
abolished  it  as  a  contempt.  I  can  not  so  regard  it.  It  ap- 
pears to  me  that  the  punishment  provided  in  the  statute  for 
this  as  an  offense  does  not  merge  the  contempt,  and  does  not 
abolish  the  power  of  the  House.  It  appears  to  me  that  it 
has  not  been  so  understood  from  the  time  of  the  enactment 


CHAP.  XIX.]  LEGISLATIVE   BODIES.  46T 

of  the  statute;  and  I  believe  this  is  the  first  time  that  that 
aspect  of  the  case  has  ever  been  presented  for  judicial  exami- 
nation. There  is  nothing  clearer  than  that  the  same  act  may 
be  both  a  misdemeanor  and  a  contempt.  If  one  member 
should  strike  another  while  the  House  was  in  session,  and  in 
its  presence,  it  would  be  a  contempt  of  the  House,  and  a  mis- 
demeanor under  the  law,  for  which  he  could  be  punished.  It 
would  be  no  answer  to  the  proceedings  in  the  House  for  con- 
tempt to  say  that  he  was  liable  under  the  general  law  of  the 
land,  to  be  punished  for  the  misdemeanor." 

§640.  The  power  of  legislative  bodies  to  punish  their, 
own  members,  as  well  as  others,  for  contempt,  is  not  a  general 
unlimited  power,  but  one  which  can  be  exercised  only  to  the 
extent  that  it  is  conferred  either  by  express  constitutional  or 
statutory  provision,  or  by  necessary  implication  therefrom. 
Thus  in  the  case  of  Kilhourne  v.  Thompson,^  it  was  held 
that  although  the  House  of  Representatives  of  the  United 
States  can  punish  its  own  members  for  disorderly  conduct  or 
for  failure  to  attend  its  sessions,  and  can  decide  cases  of  con- 
tested elections  and  determine  the  qualifications  of  its  mem- 
bers, and  exercise  the  sole  power  of  impeachment  of  officers 
of  the  government  and  may,  where  the  examination  of 
witnesses  is  necessary  to  the  performance  of  these  duties  fine 
or  imprison  a  contumacious  witness,  there  is  not  found  in  the 
Constitution  of  the  United  States  any  general  power  vested 
in  either  house  to  punish  for  contempt.  It  was  therefore 
held  in  that  case  that  the  imprisonment  of  Kilbourne  for 
refusing  to  divulge  his  private  affairs  before  a  committee  of 
investigation  of  the  house  was  unlawful,  because  the  partic- 
ular matter  about  which  the  witness  was  examined  was  not 
a  matter  to  which  the  authority  of  the  house  extended.  The 
elaborate  and  exhaustive  opinion  by  Mr.  Justice  Miller  in 
this  case  discusses  fully  the  whole  subject,  and  may  be 
referred  to  as  settling  finally  the  question  of  the  powers  of 

» 103  U.  S.,  168. 


468  ELECTIONS.  [OHAP.  XIX. 

the  Houses  of  Congress  in  the  matter  of  punishing  persons 
charged  with  contempt.  Anderson  v.  Dunn,  supra,  is  com- 
mented upon  and  some  of  its  reasoning  overruled  and  re- 
jected.^ 

1  [The  Legislature  of  the  State  of  New  York  does  not  possess  the  com- 
mon-law power  to  punish  for  contempt  which  is  exercised  by  the  Brit- 
ish Parliament.  It  has  only  such  powers  in  that  respect  as  are  expressly 
conferred  upon  it  People  v.  Webb  (Sup.  Ct.  N.  Y.,  1889),  5  N.  Y.  Sup., 
855.] 


CHAPTER  XX 

CORPORATE  ELECTIONa 

641.  Corporations  governed  by  stockholders. 

642.  Each  shareholder  entitled  to  one  vote  for  each  of  his  shares  of 

stock  unless  otherwise  provided. 

643.  Qualifications  for  voting  in  a  corporation. 

643.  Interest  of  stockholder  in  general  no  disqualification. 

643.  Limitation  of  this  rule. 

644.  Rights  of  stockholders. 

645.  Equitable  assignment  of  stock. 

645.  Right  to  vote  not  limited  to  natural  persons. 

646.  Qualification  of  rule  that  legal  holder  of  shares  may  vote  upon 

them. 
647, 648.    Corporate  transfer  book  as  evidence  of  title. 

649.  Rights  and  duties  of  persons  holding  stock  as  trusteetk 

650.  Contract  of  membership,  when  complete. 

651.  Mode  of  conducting  stockholders'  meetings. 
653.    Notice. 

653.  How  given. 

653, 654    May  be  by  statute,  charter,  by-laws  or  standing  nileB^  as 
well  as  by  publication. 

654,  655.    Mandamus  to  compel  calling  of  election. 

656.  Election  must  be  held  at  reasonable  time  and  place. 

657.  Adjournment. 

658.  659.    Validity  of  corporate  meeting  held  beyond  borders  of  State 

creating  the  corporation. 
660.    Voting  by  proxy  unknown  at  common  law. 
660.    But  now  generally  recognized. 
661, 662.    Conduct  of  corporate  election. 

663.  Illegal  voting. 

664.  Cumulative  voting. 

664, 667.    Cannot  be  forced  upon  corporations  after  their  organization. 

665.  Election  of  directors. 

665,  666.    Right  to  vote  for  less  than  whole  number, 

668.  Votes  for  disqualified  or  ineligible  candidate. 

669.  Failure  to  elect  officers  at  proper  time. 

670.  Tenure  of  officers  of  corporation. 

670.  Holding  over. 

671.  Remedies  for  illegal  corporate  elections: 


470  ELECTIONS.  [chap.  XX. 

§  641.  Strictly  speaking  a  corporation  consists  of  the 
whole  number  of  its  stockholders;  but  in  point  of  fact  the 
business  of  such  bodies  is  carried  on  by  officers  or  agents 
chosen  or  elected  by  the  stockholders.  In  the  exercise  of 
the  power  of  electing  officers,  the  majority  rules.  Whoever 
takes  shares  in  a  corporation  is  understood  as  consenting  to 
be  bound  by  the  action  of  the  majority  proceeding  within 
the  scope  of  the  powers  conferred  by  the  charter  or  organic 
law  of  the  corporation.  * 

§  642.  At  common  law  it  seems  each  shareholder  was 
entitled  to  but  one  vote  irrespective  of  the  number  of  shares 
held  by  him.'  But  by  long  continued  custom  and  usage,  it 
has  been  established  as  a  principle  of  corporation  law  that 
each  shareholder  is  entitled  to  one  vote  for  each  of  his  shares 
of  stock  and  this  is  presumed  to  be  the  law  governing  every 
corporation  unless  a  contrary  intention  is  expressed  by  the 
charter,  or  some  general  provision  of  law.  It  is  very  gener- 
ally provided  by  statute,  or  by  express  provision  of  charter 
or  articles  of  association  that  such  shall  be  the  rule. ' 

§  643.  The  qualifications  for  voting  required  of  a  stock- 
holder are  that  he  shall  be  a  bona  fide  holder  of  stock,  and 
shall  have  complied  with  all  requirements  of  the  statute  or 
Constitution  of  the  particular  State  and  of  the  charter  of  the 
company  prescribing  terms  or  conditions  upon  which  the 
right  of  stockholders  to  vote  is  to  be  exercised.  Stockholders 
are  not  disqualified  from  voting  by  reason  of  personal  interest. 
If  this  were  a  disqualification,  they  could  not  vote  at  all,  as 
all  stockholders  are  necessarily  personally  interested  in  all 
the  business  transactions  of  the  corporation  of  which  they 
are  members. 

The  rule  which  forbids  an  officer  or  agent  to  represent 
the  corporation  in  a  transaction  where  his  interests  are  hostile 

»  Morawetz  on  Private  Corp.,  2nd  Ed.,  Sees.  474,  475,  641,  647;  Dudley 
«.  Ky.  High  School,  9  Bush.,  578. 

2  Taylor  t.  Griswold,  14  N.  J.  Law,  222,  287. 
*  Morawetz  on  Private  Corp.,  Sec.  476. 


CHAP.  XX.]  COEPOEATE    ELECTIONS.  471 

to  those  of  the  corporation,  has  nf^vor  been  applied  to  deter- 
mine the  qualifications  of  stockholders  to  vote  at  a  corporate 
election.  The  courts  will  not  enter  into  an  investigation  as 
to  the  interests  of  the  numerous  stockholders  voting  at  a 
general  corporate  meeting.* 

This  doctrine,  however,  has  its  limitations;  and  it  is  safe 
to  say  that  the  majority  of  the  stockholders  can  not  fraudu- 
lently conspire  together  to  defraud  the  corporation  of  its 
property  or  rights,  nor  to  injure  the  minority,  for  their  own 
personal  advantage.  And  if,  in  attempting  to  carry  out  a 
scheme  of  this  sort,  and  as  a  part  of  the  conspiracy,  the  ma- 
jority of  the  stockholders  should  elect  a  board  of  directors 
composed  of  their  tools  and  pledged  to  carry  out  the  con- 
spiracy, it  is  not  doubted  that  the  courts  would  interfere  at 
the  suit  of  a  stockholder  and  afford  relief.  The  majority 
must  exercise  diligence  and  fidelity  in  administering  the 
company's  affairs.* 

§  644.  Each  shareholder  in  a  corporation  is  entitled  as  a 
matter  of  absolute  right  to  be  present  and  vote  at  any  meet- 
ing of  shareholders  held  for  the  purpose  of  electing  officers 
or  deciding  any  other  question  by  the  action  of  the  share- 
holders as  a  body.  8  He  is  also  entitled  to  obtain  from  the 
agents  of  the  company  the  proper  evidence  of  his  right  to 
vote,  as  for  example,  a  certificate  showing  the  number  of 
shares  to  which  he  is  entitled,  the  extent  to  which  they  have 
been  paid  up  and  the  like.  A  shareholder  who  has  pur- 
chased his  stock  in  the  market  in  good  faith  is  entitled  to 
have  the  transfer  thereof  entered  upon  the  books  in  accord- 
ance with  law.  For  the  enforcement  of  these  rights  such 
shareholder  may  proceed  by  mandamus  or  by  bill  in  equity 
for  specific  relief;  or  he  may  sue  for  and  recover  damages.* 

§  645.    As  already  stated,  the  right  to  vote  belongs  to  the 

1  Morawetz  on  Priv.  Corp.,  Sec.  477. 

2  Meeker  v.  Winthrop  Iron  Co.,  17  Fed.  Rep.,  49;  Morawetz  on  Priv. 
Corp.,  Sees.  478,  520,  and  cases  cited. 

'  [A  by-law  authorizing  holders  of  railroad  bonds  to  vote  at  stock- 
holders' meetings  is  void.     Durkee  v.  People,  155  111.,  354.] 
*  Mor.  Priv.  Corp.,  Sees.  212  et  seq.,  453,  236,  and  cases  cited  in  notes. 


472  lELECnON8.  [chap.  XX. 

shareholders;  that  is  to  say,  to  the  persons  who  hold  the  legal 
title  to  the  shares  of  stock  outstanding.  A  mere  equitable 
assignment  of  shares  does  not  deprive  the  holder  thereof  of 
his  right  to  vote  thereon.  So  it  has  been  held  that  a  pledgor 
or  mortgagor  of  shares  is  still  entitled  to  vote  as  the  legal 
holder  thereof.  *  The  right  to  vote  at  a  shareholders'  meet- 
ing is  not  limited  to  natural  persons.  A  corporation  or 
other  collective  body  holding  shares  may  vote  upon  them 
through  a  duly  authorized  agent. 

§  646.  While  the  general  rule  is  that  the  right  to  vote 
belongs  to  the  legal  holder  of  shares,  yet  this  rule  is  not 
without  its  limitations.  If  the  shareholder  has  sold  all  his 
interest  in  his  shares,  he  has  no  right  to  vote  upon  such 
shares  without  the  consent  of  his  vendee,  although  there  may 
be  no  transfer  of  the  shares  upon  the  company's  books.*  But 
the  right  of  the  legal  holder  of  shares  to  vote  thereon  is  com- 
plete as  against  the  other  shareholders,  and  the  latter  have 
no  right  to  inquire  into  the  question  of  the  equitable  owner- 
ship of  such  shares.* 

§  647.  Where  a  dispute  arises  as  to  who  is  entitled  to 
vote  upon  a  particular  share  of  stock,  reference  is  generally 
had  to  the  corporate  transfer  book.  The  person  there  regis- 
tered as  the  owner  of  the  stock  is  entitled  to  vote  upon  it. 
The  inspectors  can  not  well  inquire  beyond  the  transfer  book, 
especially  where  the  statute  provides,  as  is  the  case  in  most 
of  the  States,  that  the  stock  shall  be  transferred  only  upon 
the  books  of  the  company.* 

§  648.  It  is  not  necessary  that  the  owner  of  stock  should 
produce  his  certificate,  or  even  have  a  certificate,  in  order  to 

1  McHenry  v.  Jewett,  26  Me.,  453;  In  re  Barker,  6  Wend.,  509;  Hoppin 
V.  Buffum,  9  R  I.,  513;  Ex  parte  Willcocks,  7  Cow.,  402;  Vail  v.  Hamil- 
ton, 85  N.  Y.,  453;  Morawetz  on  Priv.  Corp.,  Sec.  483.  [And  a  pledgor 
of  stock  which  stands  in  the  name  of  the  pledgee  may  compel  the 
pledgee  by  a  suit  in  equity  to  give  him  a  proxy  to  vote  or  to  transfer 
the  stock  to  him  for  that  purpose.  Hoppin  v.  Buffum,  9  R.  L,  513;  Vowell 
V.  Thompson,  3  Cranch,  Cir.  Ct.  Rep.,  428.] 

2  McHenry  v.  Jewett,  26  Me.,  453. 

3  Re  St.  Lawrence  Steamboat  Co.,  44  N.  J.  Law,  529, 539,  and  cases  cited. 
*  In  re  Lone  Island  Railroad  Co.,  19  Wend.,  37,  44;  Ex  parteWillcocka, 

7  Cow.,  404;  State  v.  Ferris,  42  Conn,,  560,  568. 


CHAP.  XX.]  COEPOEATE   ELECTIONS.  473 

be  entitled  to  vote.*  And  it  has  been  held  that  it  is  not 
necessary  that  tlie  holder  of  the  stock  shall  have  paid  for  the 
same  in  order  to  entitle  him  to  vote,  if  he  has  purchased  it 
and  is  indebted  for  the  purchase  price.  This  vests  the  title 
to  the  stock  in  him,  together  with  the  right  to  vote  upon  it.* 

§  649.  The  general  rule  is  that  a  person  holding  stock  as 
a  trustee  is  entitled  to  vote  upon  the  stock.* 

It  has,  however,  been  decided  that  where  stock  is  held  by  a 
naked  trustee  without  any  interest,  the  cestui  que  trust  may 
compel  the  trustee  to  vote  as  he  shall  direct.*  An  executor 
or  administrator  may  vote  on  stock  of  his  testator  or  in- 
testate. This  upon  the  ground  that  the  title  is  vested  by 
law  in  such  executor  or  administrator;  and  it  has  been  held 
that  in  such  case  the  right  to  vote  can  not  be  denied  upon  the 
ground  that  the  stock  has  not  been  transferred  on  the  books 
of  the  corporation.  *  It  is  well  settled  that  a  corporation  can 
not  vote  upon  shares  of  its  own  stock. 

§  650.  It  is  sometimes  important  to  determine  at  what 
time  a  person  becomes  entitled  to  the  right  to  vote  as  a 
stockholder  of  a  corporation,  or  in  other  words  when  the 
contract  of  membership  becomes  complete  so  as  to  clothe  the 
stockholder  with  the  privileges  as  well  as  to  impose  upon 
him  the  duties  of  membership.  The  rule  is  that  the  contract 
is  complete  when  a  subscription  to  the  stock  of  the  corpora- 
tion has  been  entered  into  and  all  conditions  precedent  have 
been  complied  with.     Stock  subscriptions  are  often  entered 

>  Becket  v.  Houston,  32  Ind.,  393. 

'  Birmingham,  etc..  Railway  Co.  v.  Locke,  1  Q.  B.,  256;  Savage  c.  Ball, 
17  N.  J.  Eq.,  142;  Downing  v.  Potts,  3  Zab.,  66. 

^  Widow  Conant  v.  Millaudon,  5  La.  Ann.,  542 ;  Wilson  v.  Proprietors 
of  Central  Bridge,  9  R.  T.,  590;  Hoppin  v.  Buffum,  9  Id.,  513;  Crease  v. 
Babcock,  10  Mete,  525,  545;  In  re  Barker,  6  Wend.,  509;  In  the  matter  of 
the  Mohawk  &  Hudson  R.  R.  Co.,  19  Id.,  135 ;  In  the  matter  of  the  North 
Shore  &  Staten  Island  Ferry  Co.,  63  Barb.,  556;  Ex  parte  Holmes,  5  Cow., 
426;  Pender  v.  Lushington,  L.  R.,  6  Chan.  Div.,  70. 

*  Hoppin  V.  Buffum,  9  R.  I.,  513;  Ex  parte  Holmes,  5  Cow.,  426,  435. 

<*  In  re  North  Shore  &  Staten  Island  Ferry  Co.,  63  Barb.,  556;  Middle- 
brook  V.  Bank,  8  Keyes  (N.  Y.),  135.  [Right  of  executor  under  statute. 
In  re  Election  of  Cape  May  Nav.  Co.,  51  N.  J.  L.,  78.  In  California  a 
surviving  partner  may  vote  partnership  stock  in  his  hands  as  an  asset, 
the  firm  business  being  unsettled.     Allen  v.  Hill,  16  Cal.,  113.] 


474  ELECTIONS.  [chap.  XX. 

into  before  the  incorporation  has  been  completed,  and  in 
snch  cases  the  contract  is  to  be  regarded  as  consummated  as 
soon  as  the  incorporation  is  accomplished  and  the  prescribed 
conditions  are  complied  with.  At  this  moment  the  subscriber 
becomes  a  shareholder  with  the  right  to  vote  as  such.  In 
other  words  the  transaction  whereby  a  person  becomes  a 
stockholder  in  a  corporation  is  a  contract,  the  terms  and  con- 
ditions of  which  are  generally  in  large  part  prescribed  by 
law,  but  which  may  embody  terms  and  conditions  not 
required  by  law,  provided  they  are  not  in  conflict  with  it. 

To  determine  when  a  person  has  become  a  stockholder  it 
is  necessary  to  determine  when  the  contract  of  membership 
was  complete  by  its  own  terms  and  the  terms  of  the  govern- 
ing statute.!  It  is  not"  necessary  that  a  stock  certificate 
should  be  issued  in  order  to  complete  the  contract  of  mem- 
bership in  a  corporation.  Such  a  certificate  is  evidence  of 
membership,  but  is  not  a  necessary  part  of  the  contract.* 

§  651.  The  formalities  to  be  observed  in  holdipg  meet- 
ings of  shareholders  for  the  purpose  of  electing  oflicers  are 
generally  regulated  by  statute,  charter,  or  by-laws.  If, 
however,  regulations  are  prescribed  by  by-laws,  they  must 
be  in  harmony  with  the  general  provisions  of  the  charter  and 
with  the  laws  under  which  the  corporation  was  formed,  and 
must  no  attempt  to  abridge  the  substantial  rights  of  any 
shareholder. ' 

§  652.  Due  notice  must  be  given  of  each  meeting  of 
shareholders  held  for  the  purpose  of  electing  officers.  Every 
shareholder  is  entitled  to  be  present  at  such  a  meeting  and 
to  have  a  hearing  as  well  as  the  right  to  vote;  and  therefore 
an  election  held  at  a  meeting  at  which  some  of  the  stock- 
holders have  no  notice  is  invalid  and  may  be  set  aside.*    If 

1  Morawetz  on  Priv.  Corp.,  Sec.  56  and  cases  cited  in  notes  1,  2,  3  and  4. 

*  Id.  and  cases  cited  in  note  5. 

*  Brewster  v.  Hartley,  37  Cal.,  15,  24  ;  People  e.  Phillips,  1  Denio,  388; 
Taylor  e.  Griswold,  14  N.  J.  Law,  (Green),  222;  Petty  u.Tooker,  21  N.  Y.^ 
267 ;  Morawetz  on  Priv.  Corp.,  487. 

*  [But  the  appearance  of  all  the  stockholders  at  a  corporate  meeting 
will  be  construed  to  be  a  waiver  of  formal  notice,  Judah  v.  Am.  Live 
Stock  Ins.  Ca,  4  Ind.,  333;  Thompson  on  Corp.,  Sec.  7ia] 


CHAP.  XX.]  OOBPOKATE   ELECTIONS.  475 

notice  to  any  one  is  oinitted,  those  present  have  no  right  to 
go  on  with  the  election.  The  rule  is,  that  power  which  is 
entrusted  to  the  whole  body  of  stockholders  can  not  be 
legally  exercised  without  notice  to  all.* 

§  653.  Notice,  however,  may  be  given  by  law,  or  by  the 
charter,  by-laws,  or  standing  rules  of  the  corporation ;  and  if 
by  either  of  these  a  time  is  fixed  at  which  meetings  are  to 
be  held  for  the  election  of  ofiicers,  no  further  notice  is 
necessary.'  As  to  presumption  that  a  meeting  of  stock- 
holders has  been  regularly  called  and  due  notice  given  to  all 
stockholders,  see  authorities  cited  in  note.* 

§  654.  Meetings  of  shareholders  held  for  the  purpose  of 
electing  officers  of  the  corporation,  if  not  held  at  a  time  fixed 
by  some  general  law  or  some  provision  of  the  charter,  by-laws, 
or  standing  rules  of  the  corporation,  must  be  called  by  persons 
having  competent  authority.*  Ordinarily  the  officers  who  are 
to  have  such  authority  are  named  in  the  charter  or  by-laws 
which  also  usually  determine  the  mode  of  calling  such  meet- 
ings. But  in  the  absence  of  such  provision,  the  managing 
agents  of  the  company  have  ample  authority  to  act  in  the 
premises."  If  the  officers  of  a  corporation  whose  duty  it  is 
to  call  a  meeting  for  the  election  of  officers  shall  wrongfully 
refuse  to  perform  that  duty,  mandamus  will  lie  to  compel  its 
performance.     As  to  the  form  of  the  notice  to  be  given,  it  is 

»  Commonwealth  «.  Cullen,  13  Pa.  St.,  133;  State  v.  Bonnell,35  Ohio  St., 
10;  MacDougall  v.  Gardiner,  L.  R.,  1  Ch.  D.,  14;  People  v.  Railroad  Co., 
55  Barb.,  344 ;  Morawetz  on  Priv.  Corp.,  Sec.  479 ;  People  v.  Batchelor,  23 
N.  Y.,  134;  Jackson  v.  Hampden,  20  Me.,  37;  McDaniels  v.  Manf'g  Co., 
23  Vt,  274;  San  Bueua  Ventura  Manf'g  Co.  «.  Vassault,  50  Cal.,  534; 
People  TJ.  Railroad  Co.,  55  Barb.,  344;  Stockholders  v.  Railroad  Co.,  12 
Bush  (Ky.),  63;  Morawetz  on  Priv.  Corp.,  Sec  479,  note  3;  [Carter  Gas 
Engine  Co.  v.  Carter,  47  111.  Ap.,  36;  Hill  v.  Rich  Hill  Coal  Mining  Co., 
119  Mo..  9]. 

ii  Warner  v.  Mower,  11  Vt.,  385,  391;  State  v.  Bonnell,  35  Ohio  St.,  10; 
People  V.  Batchelor,  22  N.  Y.,  128;  San  Buena  Ventura  Manf'g  Co.  v. 
Vassault,  50  Cal.,  534;  Morawetz  on  Priv.  Corp.,  Sec.  479. 

8  Sargent  v.  Webster,  13  Mete.  (Mass.),  497;  McDaniels  v.  Flower 
Brook  Manf'g  Co.,  23  Vt.,  274;  Lane  v.  Brainard,  30  Conn.,  566,  567;  Pitts 
V.  Temple,  2  Mass.,  588;  Copp  v.  Lamp,  13  Me.,  312. 

4[Reilly  v.  Oglebay,  25  W.  Va.,  36;  Goulding  v.  Clark,  34  N.  H.,  148.] 

*Stebbins  v.  Merritt,  10  Cush.,  27;  Morawetz  on  Priv.  Corp.,  Sec.  480. 


476  ELECTIONS.  [CHAF.  XX. 

sufficient  to  say  that  it  must  fix  the  exact  time  and  place  of 
the  meeting  in  all  cases;  and  where  so  provided  by  law,  or  by 
the  charter,  or  by-laws,  the  notice  must  also  state  the  nature 
of  the  business  to  be  transacted,  or  the  officers  to  be  chosen. 
The  time  of  the  meeting  must  be  stated  with  precision,  and 
no  business  can  be  transacted  before  the  time  set.*  The 
meeting  must  be  opened  within  a  reasonable  time  after  the 
hour  indicated  in  the  notice  or  fixed  by  law  or  otherwise.* 

§  655.  If  the  officers  of  the  corporation  fail  or  neglect  to 
give  the  required  notice  of  a  meeting  of  stockholders  for  the 
purpose  of  electing  officers,  mandamus  will  lie  to  compel 
them  to  take  such  action  as  the  law  authorizes  to  call  such 
an  election.^  If  it  were  otherwise,  the  trustees  or  directors 
and  officers  of  a  corporation  might  continue  themselves  in 
office  indefinitely  by  failing  to  call  an  annual  election,  and 
the  stockholders  would  be  powerless.  In  most  of  the  States 
there  are  statutes  providing  for  the  manner  of  calling  an 
election  in  case,  for  any  reason,  the  time  fixed  by  law  or  by 
charter  provision  shall  pass  without  an  election  being  held; 
and  the  duty  of  obedience  to  such  statutory  provisions  will 
be  compelled  by  mandamus.*  Where  the  civil  law  prevails, 
as  in  the  State  of  Louisiana,  if  the  proper  authorities  of  the 
corporation  refuse  to  act,  or  die,  or  resign,  a  court  of  equity 
will  appoint  a  receiver  or  manager  ad  interim  for  the  pur- 
pose of  winding  up  the  concern.^  But  in  a  State  where 
the  common  law  prevails,  it  seems  that  a  court  of  equity 
would  not  interfere  in  such  a  case,  because  there  is  an  ade- 
quate remedy  by  mandamus.^ 

1  People  V.  Railroad  Ca,  55  Barb.,  844;  People  v.  Batchelor,  23  N.  Y., 
134 

2  South  School  District  v.  Blakesley,  13  Conn.,  227,  237;  State  v.  Bon- 
nell,  35  Ohio  St.,  10. 

*[Mottu  V.  Primrose,  23  Md.,  482;  Congregational  Society  of  Bethany 
V.  Sperry,  10  Conn.,  200.] 

♦People  V.  Board  of  Governors  of  Albany  Hospital,  61  Barb.,  397;  State 
of  Nevada  v.  Wright,  10  Nev.,  167;  People  v.  Cummings,  72  N.  Y.,  433; 
Cook  on  Stock  and  Stockholders,  Sec.  906. 

*  Brown  v.  Union  Insurance  Co.,  3  La.  Ann.,  177,  183. 

«  Curry  v.  Woodward,  53  Ala.,  371, 375;  Knowlton  v,  Ackley,  8  Cush.,  9a 


CHAP.  XX.]  CORPORATE    ELECTIONS.  477 

§  656.  A  meeting  of  shareholders  for  the  purpose  of 
electing  officers  must  be  held  at  a  reasonable  hour  and  must 
not  be  called  at  an  unusual  place  where  the  stockholders 
would  be  unable  to  attend  without  great  inconvenience.^ 
Such  meetings  must  be  held  within  the  State  by  which  the 
corporation  was  chartered,  unless  all  the  stockholders  give 
their  consent  to  the  holding  of  a  meeting  in  a  foreign  juris- 
diction,'* [or  unless  permitted  by  statutory  provision].' 

§  657.  A  meeting  of  shareholders  held  for  the  election 
of  officers  of  a  corporation,  unlike  a  general  election  by  the 
people,  may  be  adjourned  from  time  to  time,  and  all  the 
shareholders  are  bound  to  take  notice  of  such  adjournment. 
Any  business  which  may  not  have  been  transacted  at  the  reg- 
ular meeting  may  be  transacted  at  the  adjourned  meeting.* 

§  658.  Upon  the  question  of  the  validity  of  a  corporate 
meeting  held  beyond  the  borders  of  the  State  creating  the 
corporation,  there  is  a  serious  conflict  among  the  authorities. 
It  has  been  held  in  a  number  of  cases  that  the  proceedings  of 
such  a  meeting  are  wholly  void,  and  not  capable  of  being  ren- 
dered valid  by  subsequent  ratification  by  the  corporation  at 
a  regular  meeting.''  There  are  other  cases  holding  that  the 
votes  and  proceedings  at  such  a  meeting  are  voidable  rather 
than  void,  and  that  they  may  be  subsequently  ratified  by 
the  corporation.® 

1  [First  Nat.  Bank  v.  Asheville  Furniture  &  Lumber  Co.,  116  N.  G.,  827.] 

2  Morawetz  on  Priv.  Corp.,  Sec.  488,  and  numerous  cases  cited  in  note  2. 
» [Statutes  of  Minnesota,  1881.J 

*  Warner  v.  Mower,  11  Vt.,  385. 

6  Aspinwall  v.  Ohio,  etc.,  R.  R.  Co.,  20  Ind.,  492,  497;  Wood  Hydraulic 
Hose  Mining  Co.  v.  King,  45  Ga.,  35;  Miller  v.  Ewer,  27  Me.,  509;  Free- 
man V.  Machias  Water  Power,  etc.,  Co.,  38  Id.,  343;  Hilles  v.  Parrish,  14 
N.  J.  Eq.,  380;  Ormsby  v.  Vermont  Copper  Mining  Co.,  56  N.  Y.,  623; 
Merrick  v.  Brainard,  38  Barb.,  574.  See  S.  C.,  sub  nom.,  Merrick  v.  Van 
Santvoord,  34  N.  Y.,  208. 

*Ohio,  etc.,  R  R.  Co.  v.  McPherson,  35  Mo.,  13;  Freeman  v,  Machias 
Water  Power  Co.,  38  Me.,  343.  The  Legislature  may  also  validate  the 
acts  passed  at  such  a  meeting,  in  case  it  could  have  authorized  the 
meeting  in  the  first  instance.  Graham  v.  Boston,  H»\rtf  ord  &  Erie  R  R 
Ca,  118  U.  S.,  161,  178,  affirming  S.   C,  14  Fed.  Rep.,  753.    See  also 


478  ELECTIONS.  [chap.  XX. 

§  659.  "Whatever  the  true  rule  may  be,  it  is  clear  that  the 
corporation  itself  can  not  be  heard  to  insist  that  such  pro- 
ceedings are  void.*  The  corporation  is  estopped  to  denj  the 
validity  of  such  proceedings,  as  is  also  any  stockholder  who 
takes  part  in  such  a  meeting.*  It  is  equally  clear  that  offi- 
cers cliosen  at  a  meeting  of  stockholders  held  outside  of  tbe 
State,  and  who  qualify  and  enter  upon  their  duties,  will  be 
regarded  as  officers  de  facto  whose  acts  as  to  third  parties 
and  the  public  will  bind  the  corporation.  It  seems  evident, 
however,  that  in  the  present  state  of  the  law,  it  is  an  unsafe 
proceeding  to  hold  meetings  for  the  transaction  of  the  busi- 
ness of  a  corporation  outside  of  the  State  creating  it,  and  that 
it  is  especially  desirable  that  all  meetings  of  stockholders  of 
a  corporation  for  the  purpose  of  electing  officers,  should  be 
held  within  such  State. 

§  660.  At  common  law  voting  by  proxy  is  unknown,  and 
therefore  the  members  of  corporations  must  vote  personally 
unless  the  right  to  vote  by  proxy  is  conferred  by  statute,  or 
by  the  charter  or  by-laws.*  It  is  believed  that  the  right  to 
vote  by  proxy  is  conferred  upon  the  shareholders  in  a  very 
large  majority  of  the  corporations  in  this  country  by  express 
provision  of  statute  or  by  the  company's  charter  or  by-laws. 
As  to  the  form  in  which  the  authority  to  vote  may  be  dele- 
Grenada  Co.  V.  Brogden,  113  U.  S.,  261;  Anderson  r.Santa  Anna,  116  Id., 
358;  Shaw  v.  Norfolk  R  R  Co.,  5  Gray,  163;  Howe  v.  Freeman,  14  Id., 
566.  [The  proceedings  of  a  meeting  of  the  board  of  directors  of  an 
Alabama  corporation  held  outside  that  State  cannot  be  introduced  in 
evidence  in  an  action  in  a  court  of  Alabama  unless  it  be  first  shown 
that  the  requirements  of  the  statute  (Acts  1889,  p.  76)  regulating  the 
holding  of  such  meetings  outside  the  State  have  been  complied  with* 
Brockway  v.  Gadsden  Mineral  Land  Co.,  102  Ala.,  620.] 

1  Heath  v.  Silverthom  Lead  Mining  Co.,  39  Wis.,  146. 

*Camp  V.  Byrne,  41  Ma,  535;  Ohio,  etc.,  Railroad  Ca  v.  McPherson, 
35  Mo.,  13. 

'Phillips  V.  Wickham,  1  Paige,  590,  598;  Taylor  v.  Griswold,  14  N.  J. 
Law,  233;  2  Kent's  Com.,  294;  People  r.  Twaddell,  18  Hun,  437;  Craig  v. 
First  Presb.  Church,  88  Pa.  St.,  42;  Commonwealth  v.  Bringhurst,  103 
Id.,  134.  See  Brown  v.  Commonwealth,  3  Grant's  Cases,  209;  State  v. 
Tudor,  5  Day,  329;  Matter  of  Barker,  6  Wend.,  409. 


CHAP.  XX.]  COEPOKATE    ELECTIONS.  479 

gated,  it  is  suflScient  to  say  that  it  must  be  in  writing  and 
must  be  sufficient  to  reasonably  insure  the  inspector  that  the 
agent  is  acting  by  authority  of  his  principal ;  but  no  pre- 
scribed form  need  be  executed  with  any  particular  formal- 
ity.^ The  authority  of  a  proxy  may  be  revoked  at  any  time, 
unless  the  delegation  be  irrevocable  as  between  the  par- 
ties.2 

§  661.  Upon  the  question,  by  what  officers  shall  a  cor- 
porate election  be  conducted,  it  is  sufficient  to  say  that  in 
so  far  as  the  mode  of  proceeding  is  prescribed  by  statute,  or 
by  provisions  of  the  charter  or  by-laws,  it  is  desirable  that 
they  be  strictly  followed,  though  ordinarily  such  provisions 
will  be  regarded  as  directory  only,  and  a  departure  fron^ 
them  will  not  invalidate  the  election  provided  there  is  a  fail 
expression  of  the  will  of  the  majority.^  The  form  of  pro- 
ceeding is  in  general  not  material,  provided  no  positive  or 
mandatory  provision  of  the  statute  or  charter  is  violated  and 
the  election  is  fair  and  orderly.*  It  is  not  essential,  in  the 
absence  of  an  express  provision  of  law  or  of  the  charter,  that 
the  corporate  officers  shall  conduct  the  election.^  The  cor- 
porators, when  assembled,  may  exercise  the  power  of  ap- 
pointing inspectors  for  the  purposes  of  the  election,  if  the 

lUe  St.  Lawrence  Steamboat  Co.,  44  N.  J.  Law,  529,  534;  Re  Cecil,  36 
How.  Pr.,  477;  Marre  v.  Garrison,  13  Abb.  New  Cas.,  210;  Cool£  on  Stock 
and  Stockholders,  Sec.  608. 

2  Reed  v.  Bank  of  Newburgh,  6  Paige,  337. 

3  [An  election  of  directors  of  an  incorporated  company  will  not  be 
set  aside  on  a  summary  application  for  that  purpose  on  the  ground 
that  the  inspectors  were  not  sworn  in  the  form  prescribed  by  the  stat- 
utes; and  it  seems  that  an  election  would  not  be  set  aside  upon  such 
application,  although  no  oath  was  administered  to  the  inspectors,  if  no 
objection  was  interposed  at  the  time  of  the  election.  It  is  enough  that 
they  were  duly  appointed  and  entered  upon  the  discharge  of  the  duties 
of  their  office.  In  the  Matter  of  the  Election  of  the  Directors  of  the 
Mohawk  &  Hudson  R.  R.  Co.,  19  Wend.,  135.] 

*  Fox  V.  Allensville,  etc.,  Turnpike  Co.,  46  Ind.,  31;  Cook  on  Stock  and 
Stockholders,  Sec.  605. 
5  People  V.  Twaddell,  18  Hun,  437. 


480  ELECTIONS.  [chap.  XX. 

inspectors  provided  for  by  law  fail  to  act  ^  or  are  restrained 
by  injunction.* 

§  662.  "When  the  shareholders  of  a  corporation  are  as- 
sembled for  the  purpose  of  electing  officers,  they  have  the 
right  to  appoint  inspectors  or  judges  of  election.'  This 
right  belongs  exclusively  to  the  shareholders  and  cannot  be 
exercised  by  the  board  of  directors. 

§  663.  Concerning  the  reception  of  illegal  votes,  it  is  suf- 
ficient to  say  that  the  rules  which  are  to  determine  whether 
the  election  is  thereby  vitiated  are  the  same  with  respect 
to  corporate  elections  as  in  cases  of  elections  by  the  people. 
These  rules  have  been  sufiiciently  stated  elsewhere  in  this 
work.* 

§  664.  "What  is  known  as  cumulative  voting  in  private 
corporations  is  provided  for  by  constitutional  provisions  in 
several  of  the  States,  and  among  them  Illinois,  Pennsylvania, 
"West  Yirginia,  Nebraska,  Missouri  and  California.  These 
constitutional  provisions  provide  in  substance  that  the  vot- 
ing power  of  each  shareholder  shall  be  the  number  of  shares 
he  owns  multiplied  by  the  number  of  directors,  and  that  he 
may  divide  this  power  among  as  many  candidates  not  greater 
than  the  whole  number  to  be  elected,  and  in  such  propor- 
tions, as  he  shall  see  fit.  There  seems  to  be  no  reason  to 
question  the  validity  of  these  provisions  in  so  far  as  they 
apply  to  corporations  organized  after  their  adoption ;  but  it 
has  been  held  that  they  are  unconstitutional  as  impairing 
the  obligation  of  contracts  and  infringing  on  vested  rights 
so  far  as  they  concern  corporations  chartered  before  the 
adoption  of  the  Constitution,® 

1  Matter  of  Wheeler,  2  Abb.  Prac.  (N.  S.),  361. 

2  People  V.  Railroad  Co.,  55  Barb.,  344. 

3  State  V.  Merchant,  37  Ohio  St.,  251. 

*  See,  however,  Morawetz  on  Priv.  Corp.,  Sec.  485,  and  cases  cited  in 
note. 

*  Hayes  v.  Commonwealth  of  Pennsylvania,  82  Pa.  St.,  518;  State  v. 
Greer,  78  Mo.,  188;  S.  C„  8  Am.  and  Eng.  Corp.  Cas.,  322;  Cook  on  Stock 
and  Stockholders,  Sec.  609;  Commissioners  v.  Harper,  38  111.,  103.  And 
see  Morawetz  on  Priv.  Corp.,  Sec.  1059. 


CHAP.  XX.]  COBPOKATE   ELECTIONS.  481 

§  665.  It  is  held  in  New  York  that  where  a  corporate 
election  is  held  for  the  purpose  of  choosing  a  board  of  di- 
rectors composed  of  a  given  number,  any  stockholder  may 
vote  for  any  number  of  candidates  not  exceeding  the  whole 
number  to  be  chosen.^  In  that  case  thirteen  directors  were 
to  be  elected,  and  one  of  the  tickets  voted  contained  the 
names  of  only  seven  persons,  and  it  was  held  that  the  ticket 
was  not  void  because  it  did  not  contain  thirteen  names. 
Davis,  P.  J.,  said: 

"  JSTo  stockholder  was  bound  to  vote  for  any  larger  num- 
ber of  persons  than  he  chose,  and  any  number  of  persons 
receiving  a  majority  of  lawful  votes  are  elected,  although 
there  be  a  failure  to  elect  the  full  number  required  by  law." 

It  would  seem,  therefore,  that  while  a  stockholder  cannot 
concentrate  more  votes  than  he  is  entitled  to  cast  upon  a 
number  of  candidates  less  than  the  whole  number  to  be 
chosen,  unless  authorized  so  to  do  b}'"  the  express  statute  or 
constitutional  provision,^  yet  he  may  cast  the  votes  he  is  en- 
titled to  cast  for  any  number  he  chooses  not  exceeding  the 
whole  number  to  be  elected. 

§  QG6.  Where  an  election  was  held  for  the  purpose  of 
choosing  seven  directors  of  a  corporation,  and  a  cumulative 
system  of  voting  was  adopted  as  authorized  by  the  Consti- 
tution of  Pennsylvania,  and  five  directors  only  received  the 
necessary  pluralities,  it  was  held  that  said  election  was  valid 
as  to  the  five  directors  so  chosen,  and  that  they  had  full 
power  to  act  as  a  board,  even  though  the  remaining  two  di- 
rectors were  not  chosen.' 

1  Vandenburgh  v.  Railroad  Co.,  29  Hun,  348. 

2  Hayes  v.  Commonwealth,  82  Pa.  St.,  518;  Pierce  v.  Commonwealth, 
104  Pa.  St.,  150. 

8  Wright  V.  Commonwealth,  109  Pa.  St.,  560.  [Where,  by  an  act  in- 
corporating an  insurance  company,  the  management  of  the  stock  and 
affairs  of  the  corporation  was  given  to  a  board  of  twenty-three  di- 
rectors to  be  annually  elected,  a  major  part  of  whom  by  the  act  were 
competent  to  the  transaction  of  all  the  business  of  the  corporation,  and 
an  election  of  the  directors  took  place,  at  which  only  twenty-two  per- 
sons received  a  plurality  of  votes,  such  twenty-two  persons  were  duly 


482  ELECTIONS.  [chap.  XX. 

§  667.  In  a  late  case  in  Pennsylvania  it  is  held  that  the 
directors  of  a  corporation  have  no  power  to  accept  the  pro- 
visions of  a  constitutional  amendment  authorizing  cumula- 
tive voting  where  the  charter  gives  each  stockholder  one 
vote  for  each  share  of  stock.* 

§  668.  In  corporate  elections,  as  well  as  in  elections  by 
the  people  of  public  officers,  the  rule  has  been  established 
that  votes  cast  for  a  disqualified  or  ineligible  candidate  are  not 
thrown  away  so  as  to  make  the  election  fall  on  the  candidate 
having  a  minority  of  votes,  especially  if  it  is  not  shown  that 
the  stockholders  casting  such  votes  had  knowledge  of  the 
fact  which  rendered  the  candidate  voted  for  by  them  ineli- 
gible and  disabled  by  law  from  holding  office.^ 

§  669.  It  is  well  settled  that  a  failure  to  elect  officers  at 
the  time  fixed  by  law  does  not  work  a  dissolution  of  the  cor- 
poration. The  old  officers  will  hold  over  until  their  succes- 
sors are  duly  elected.' 

§  6Y0.  The  duration  of  the  official  term  of  officers  of  cor- 
porations is  in  this  country  very  generally  fixed  by  statute 
or  charter  provision.  It  is  almost  always  provided  in  terms 
that  the  officer  shall  hold  for  a  definite  period  and  until  his 
successor  is  elected  and  qualified.*  In  England  and  accord- 
ing to  the  common  law,  it  seems  that  officers  of  corpora- 
tions do  not  hold  over  until  the  election  and  qualification  of 
their  successors,  unless  by  express  provision  of  statute  or 
charter.     The  right  to  hold  over  did  not,  by  common  law, 

elected  and  took  the  place  of  their  predecessors,  notwithstanding  that 
it  chanced  that  the  full  number  of  twenty-three  directors  was  not  filled 
up.    In  the  Matter  of  the  Union  Insurance  Co.,  23  Wend.,  591.J 

1  Baker's  Appeal,  109  Pa.  St.,  461. 

«  Re  St.  Lawrence  Steamboat  Co.,  44  N.  J.  Law,  529, 535,  citing  Regina 
V.  Coaks,  3  E.  &  B.,  249;  Regina  v.  Mayor  of  Tewksbury,  L.  R,  3  Q.  B., 
629;  Drinkwater  v.  Deakin,  L.  R.,  9  C.  P.,  626;  Etherington  v.  Wilson, 
L.  R.,  20  Eq.,  606;  Re  Long  Island  R.  R.  Co.,  19  Wend.,  37;  Downing  u 
Potts,  3  Zabr.,  66;  [In  re  St  Lawrence  Steamboat  Co.,  44  N.  J.  L.,  529 J. 

'State  V.  Bonnell,  35  Ohio  St.,  10,  17;  Smith  v.  Silver  Valley  Mining 
Co.,  64  Md.,  85;  People  v.  Twaddell,  18  Hun,  427;  Reilly  v.  Oglebay,  25 
W.  Va.,  36,  43. 

<  [Nathan  v.  Tompkins,  82  Ala.,  437.] 


CHAP.  XX.]  OOEPOKATE   ELECTIONS.  483 

exist  by  implication,  and  was  not  an  incident  to  the  office.* 
A  different  doctrine,  however,  prevails  in  this  country,  and 
it  is  here  very  generally  held  that,  even  in  the  absence  of  a 
provision  for  holding  over,  corporate  officers  may  continue 
to  discharge  the  duties  of  their  offices  until  their  successors 
are  chosen  and  qualified.  In  other  words,  unless  there  is  a 
statute  to  the  contrary,  corporate  officers  will  hold  until  their 
successors  are  qualified  so  as  to  take  their  places.^  It  is  not, 
however,  necessary  that  the  restriction  against  holding  over 
should  be  express.  It  may  be  implied  by  the  use  of  any 
language  which  clearly  shows  the  intention  of  the  Legislature 
to  limit  the  tenure  strictly  to  a  definite  period;  as,  for  ex- 
ample, where  it  is  provided  that  the  officers  shall  be  annu- 
ally elected  on  a  particular  day,  and  that  they  shaU  hold 
from  one  election  day  till  the  next,  or  that  they  shall  be 
elected  for  the  year  ensuing  only.  In  such  cases  they  can- 
not hold  over  beyond  the  fixed  term.' 

§  6T1.  The  law  affords  several  distinct  remedies,  either 
of  which  may  be  pursued  by  parties  aggrieved  by  illegal  or 
fraudulent  corporate  elections.*    In  the  first  place,  the  com- 

1  DilL  on  Munic  Corp.,  Sec.  217;  Rex  v.  Atkins,  4  Mod.,  13;  Rex  v. 
Thornton,  4  East,  294. 

2  Dill,  on  Munic.  Corp.,  Sec.  219;  People  v.  Runkel,  9  Johns.,  147;  Slee 
V.  Bloom,  5  Johns.  Ch.,  366,  378;  2  Kent's  Com.,  288;  Kelsy  v.  Wright,  1 
Root  (Conn.),  83;  South  Bay,  etc.,  Co.  v.  Gray,  30  Me.,  547;  Chandler  v. 
Bradish,  23  Vt.,  416;  Overseers  of  Poor  v.  Sears,  22  Pick.,  122, 130;  School 
Dist.  V.  AUerton,  12  Mete,  105;  Dow  v.  Bullock,  13  Gray,  136;  McCallu 
Byram,  etc.,  Co.,  6  Conn.,  428. 

*Dill.  Munic.  Corp.,  Sec.  220  and  cases  cited  in  notes;  Tuley  v.  State, 
1  Ind.  (Carter),  500,  502.  [When  the  charter  of  a  corporation  provides 
that  annual  meetings  for  the  election  of  directors  shall  be  held  by  the 
stockholders,  the  directors  cannot  by  a  by-law  so  change  the  time  of 
holding  the  annual  election  as  to  continue  themselves  in  office  more 
than  a  year  against  the  wishes  of  the  holders  of  the  majority  of  the 
stock.  Elkius  v.  Camden  &  Atlantic  Ry.  Co.,  36  N.  J.  Eq.,  467.  As  to 
expiration  of  term  of  one  elected  to  fill  a  vacancy,  see  State  ex  rel.  Piper 
V.  Batt,  38  La.  Ann.,  955.] 

♦  [Mandamus  will  lie  upon  the  petition  of  a  private  corporation  to 
compel  the  surrender  to  its  proper  oflBcers  of  books  and  papers  pertain- 
ing to  their  offices  and  held  by  persons  actually  but  unlawfully  exeiv 


4:84  ELECTIONS.  [chap.  XX. 

mon-law  remedy  by  action  of  quo  warranto  in  the  name  of 
the  State  upon  the  relation  of  the  parties  aggrieved  will  lie 
to  try  the  title  of  the  person  claiming  an  office  by  virtue  of 
such  an  election ;  *  or  if  action  by  quo  warranto  has  been, 
by  the  law  of  the  particular  State,  supplanted  by  a  statu- 
tory remedy  of  a  similar  nature,  this  can  be  resorted  to  for 
the  same  purpose.^  The  rules  and  principles  applicable  to 
elections  of  public  officers  in  general  which  are  treated  of  in 
other  portions  of  this  work  will  apply,  with  few  if  any  ex- 
ceptions, to  such  a  suit.  Besides  proceedings  in  quo  war- 
ranto at  common  law  or  under  statute  regulating  the  contest 
of  elections,  there  is  a  concurrent  remedy  in  equity  in  a  par- 
ticular class  of  cases.'  Where  the  question  of  the  validity 
of  an  election  arises  incidentally  in  a  proceeding  in  equity, 
the  court  will  inquire  into  it  and  pass  upon  it.*  And  it  has 
been  held  that  fraud  in  the  election  of  directors  of  a  corpo- 
ration will  give  a  court  of  equity  jurisdiction  to  set  the  same 
aside.'  In  the  latter  case  the  opinion  was  expressed  by  the 
court  that  "  if  the  election  of  certain  persons  as  directors  is 
the  result  of  a  conspiracy,  a  court  of  chancery  will  find  its 

cising  the  functions  of  those  offices  under  a  claim  of  right,  but  having 
usurped  the  oflSces  under  the  choice  of  a  minority  of  the  stockholders 
by  the  use  of  illegal  votes.  Am.  Railway-Frog  Co.  v.  Haven,  101  Mass., 
398.  The  directors  of  a  corporation  cannot  dispute  the  right  of  a  stock- 
holder holding  a  majority  of  the  stock  to  have  an  election  in  accord- 
ance with  the  by-laws  of  the  corporation,  on  the  ground  that  he  intends 
to  use  his  legal  rights  for  purposes  detrimental  to  the  interests  of  the 
corporation,  and  that  the  proposed  election  is  a  step  towards  the  illegal 
control  of  the  property.    Camden  R.  R.  t?.  Elkins,  37  N.  J.  Eq.,  27a] 

1  [Jenkins  v.  Baxter,  160  Pa.  St,  199.] 

2[Tomlin  v.  Farmers'  &  Merchants'  Bank,  52  Mo.  Ap.,  430;  In  re  St 
Lawrence  Steamboat  Co.,  44  N.  J.  Law,  529.] 

3  [An  injunction  will  be  granted  to  restrain  the  voting  of  stock  in 
violation  of  the  charter  provisions  of  a  corporation,  and  to  restrain  a 
transfer  made  for  the  purpose  of  fraudulently  controlling  an  election. 
Webb  V.  Ridgely,  88  Md.,  364;  Busey  v.  Hooper,  35  Md.,  27.] 

*  Mechanics'  National  Bank,  eta,  v.  Burnett  Manf  g  Co.,  32  N.  J.  Eq., 
236;  Johnson  v.  Jones,  23  Id.,  216. 

8  Davidson  v.  Grange,  4  Grant's  Ch.  (Upper  Canada),  377;  Wads  worthy 
etc..  Gaslight  &  Coke  Co.  v.  Wright,  18  W.  R,  72a 


CHAP.  XX.]  CORPORATE   ELECTIONS.  485 

arm  long  enough  to  deal  with  such  a  fraud."  It  has  also 
been  held,  irrespective  of  statutory  provision,  that  the  share- 
holders in  a  private  corporation  have  such  an  interest  in  its 
affairs  as  justifies  them  in  appealing  to  a  court  of  chancery 
to  try  and  determine  the  validity  of  an  election  of  directors.^ 
[But  a  stockholder  who,  with  full  knowledge  of  the  objec- 
tions to  the  legality  of  a  certain  class  of  votes,  attends  a 
meeting  of  the  corporation,  participates  in  its  deliberations, 
and  acquiesces  in  its  decisions  by  canvassing  and  voting  in 
the  election  of  officers,  cannot  question  the  title  of  the  offi- 
cers elected  on  the  ground  that  such  class  of  votes  was  ille- 
gal.] ^ 

Injunction  cannot  be  maintained  for  the  purpose  of  de- 
termining the  question  of  contested  election  of  directors  of 
a  corporation.' 

I  In  re  Election  of  St.  Lawrence  Steamboat  Co.,  44  N.  J.  Law,  529.  But 
see  New  England  Mut.  Ins.  Co.  v.  Phillips,  141  Mass.,  535;  13  Am.  &  Eng. 
Corp.  Cas.,  104. 

'[Thompson  on  Corporations,  Sec.  787;  State  v.  Lehre,  7  Rich.  Law 
(&  C),  234] 

8  New  Eng.  Mut.  Life  In&  Co.  u  Phillips,  141  Mass.,  535;  13  Am.  &  En& 
Corp.  Cas.,  104.  [But  where  an  office  in  a  corporation  has  been  ob- 
tained by  fraud,  this  confers  on  a  court  of  equity  jurisdiction  to  inquire 
into  the  validity  of  such  election  for  the  purpose  of  restraining  by  in- 
junction the  acts  of  one  claiming  office  thereunder.  Johnston  v.  Jones, 
23  N.  J.  Eq.,  216.  See,  also,  Elkins  v.  Camden  &  Atlantio  By.  Ca,  36 
N.  J.  Eq.,  467.] 


CHAPTER  XXL 

STATUTORY  REGULATION  OF  ELECTION&* 

§  673, 673.    Importance  of  the  subject. 

674.  Evils  of  crowding  the  polling  places. 

675.  Multiplication  of  voting  precincts. 

676.  Complete  registration. 

677.  Non-partisan  election  boards. 

677.  Presence  of  witnesses  representing  all  partiea 

678,  679.    Counting  of  votes  without  delay. 

680.  Protection  of  voters  against  intimidation  and  violenca 

681.  Fraudulent  ballots. 

681.    Regulation  as  to  size  and  form  of  ballot. 
<582.    Summary  of  necessary  provisions. 
683-689.    Existing  statutes. 

684.    Recent  act  of  Kansas  Legislature  to  prevent  crowding  at  polls. 
690.    Provisions  against  counting  ballots  so  printed  as  to  mislead 
voters. 

§  672.  Experience  has  shown  that  the  careful  revision  and 
amendment  of  the  statutes  of  most  of  the  States  regulating  the 
conduct  of  elections  is  a  matter  of  the  first  importance.  In  the 
hope  of  directing  the  attention  of  legislators  to  this  subject,  of 
stimulating  its  consideration,  and  of  securing  the  much  needed 
action,  this  chapter  has  been  prepared  and  is  here  inserted. 
The  design  of  the  author  is  not  only  to  show  the  importance 
of  the  subject,  but  also  to  submit  some  practical  and,  he  hopes, 
useful  suggestions  as  to  the  character  of  the  legislation  re- 
quired to  secure  and  preserve  that  without  which  free  gov- 
ernment is  impossible — the  freedom  and  purity  of  the  ballot.^ 

1  [The  general  adoption  by  the  States  of  the  Australian  ballot  system, 
embodying  the  reforms  suggested  in  this  chapter,  and  the  consequent 
revision  of  the  election  laws  mentioned  herein  as  in  force  at  the  time 
the  chapter  was  written,  make  it  impracticable  to  indicate  adequately 
by  foot-notes  the  changes  which  have  taken  place.  The  chapter  is  there- 
fore reproduced  as  originally  published,  the  following  chapter  being  de- 
voted to  the  Australian  system,  the  provisions  of  which  have  very  gen- 
erally superseded  the  statutes  of  the  different  States  referred  to  herein.] 

*  This  chapter  is  taken,  in  substance,  from  an  article  on  "  Our  Election 
Laws,"  prepared  by  the  author  and  published  in  "  The  North  American 
Reinew  "  for  May,  1879. 


OHAP.  XXI.]  8TATUT0KY   REGULATION.  487 

§  673.  A  government  based  upon  popular  suffrage  can  be 
successful  in  the  best  sense  only  to  tlie  extent  that  the  popu- 
lar voice  is  freely  expressed,  fairly  and  honestly  ascertained, 
and  fully  obeyed.  It  is  therefore  of  the  greatest  consequence 
that  the  purity  and  sanctity  of  the  ballot  should  be  guarded 
by  the  wisest  and  best  legislation  that  statesmanship  can  de- 
vise. It  is  impossible  to  over-estimate  the  importance  of  this 
subject  in  a  government  such  as  ours,  where  the  supreme 
power  is  vested  only  in  the  people,  to  be  exercised  by  means 
of  the  ballot.  Fairness  and  honesty  in  the  conduct  of  elec- 
tions will  alone  keep  pure  the  sources  of  power  in  this  gov- 
ernment, and  thus  promote  peace  and  good  order  and  give 
stability  to  our  institutions.  Our  election  laws  ought  to  be 
framed  and  executed  with  a  view  to  securing  these  great 
ends,  but  truth  compels  the  statement  that  our  statutes  are 
exceedingly  imperfect  in  themselves,  and,  what  is  worse,  are 
too  often  administered  in  the  interest,  not  of  purity  and  jus- 
tice, but  of  party.  It  is  not  to  be  denied  that  many  of  the 
wisest  and  best  of  our  citizens  consider  that  our  institutions 
are  in  peril,  from  the  fact  that  popular  elections  are  so  fre- 
quently controlled  by  fraud  and  violence.  Wise  and  prudent 
citizens  may  well  say  that,  if  we  lose  faith  in  the  machinery 
provided  for  the  expression  of  the  popular  will,  we  must  also 
eventually  lose  faith  in  our  form  of  free  government,  since  it 
can  be  valuable  only  in  proportion  as  it  is  in  fact,  as  well  as 
in  theory,  a  government  by  the  people.  As  our  population 
increases  and  our  great  cities  multiply,  the  problem  of  how 
to  secure  and  preserve  freedom  and  fairness  in  elections, 
grows  annually  more  grave  and  difficult.  It  is  to-day  a  ques- 
tion of  how  to  secure  and  record  a  fair  and  honest  expression 
from  at  least  ten  millions  of  voters.  "Within  the  lifetime  of 
some  of  the  present  generation  it  will  become  a  question  of 
dealing  with  at  least  forty  millions  of  voters.  To  be  assured 
that  this  problem  has  been  solved,  is  to  know  that  our  great- 
est danger  has  been  removed,  and  therefore  every  citizen 
should  be  willing  to  contribute  something  toward  its  solu- 
tion.    Let  it  be  premised  that  the  ends  to  be  aimed  at  by 


4:83  ELECTIONS.  [chap.  XXL 

legislation  upon  this  subject  are  (1),  to  secure  to  all  legal 
voters  equal  and  ample  opportunity  to  vote,  and  to  exclude 
all  others;  and  (2),  to  secure  a  fair  canvass  and  an  honest 
declaration  of  the  result  of  every  election.  No  difference  of 
opinion  can  exist  among  honest  men  as  to  the  propriety,  nay 
the  necessity,  of  securing  these  ends,  which  all  will  admit 
constitute  the  foundation  upon  which  the  fabric  of  free  gov- 
ernment rests.  To  render  them  secure,  is  to  perpetuate  our 
institutions  and  transmit  them  pure  and  strong  to  future 
generations.  It  would  seem  that  no  State  should  hesitate  to 
provide  the  legislation  necessary  to  secure  ends  so  manifestly 
just,  and  so  essential  to  the  very  existence  of  free  govern- 
ment. Many  of  the  laws  upon  this  subject  were  originally 
enacted  for  the  government  of  a  largely  rural  and  agricultural 
population,  who  needed  few  if  any  restraints,  and  they  have 
been  copied  and  applied  to  communities  very  differently  situ- 
ated from  such  a  population,  and,  as  a  whole,  by  no  means  so 
well  disposed  toward  law  and  order.  Assuming  that  the  ends 
to  be  sought  are  freedom  and  equality  among  voters,  and 
honesty  and  perfect  fairness  in  the  count,  and  that  these 
great  ends  are  not  always  secured  under  existing  laws,  let  us 
inquire  how  we  may  remedy  existing  evils  by  legislation.  It 
is  believed  that  plain,  simple,  and  ample  remedies  are  within 
our  reach,  the  adoption  of  wliich  would  injure  none,  while, 
as  nearly  as  human  laws  can  do  so,  they  would  protect  the 
rights  of  all. 

§  674,  First  in  importance  as  a  means  of  securing  free- 
dom in  elections,  are  such  statutory  provisions  as  will 
prevent  the  crowding  of  the  polling  places  by  large  numbers 
of  people.  In  some  of  the  States  all  the  voters  of  an  entire 
county  may  vote  at  the  county  seat,  and  in  all  the  large 
cities,  and  in  many  of  the  smaller  ones,  the  crowds  that 
assemble  at  the  polls  are  large  and  often  disorderly  and 
turbulent.  The  evils  that  result  from  overcrowding  the 
polling  places  are  apparent  enough: 

1.     It  delays   the   process  of  voting  so  that  each  voter 


CHAP,  XXI.]  ,        STATFIOEY   REGULATION.  489 

waiting  for  his  turn  may  be  detained  for  hours.  Many  busi- 
ness men,  who  value  time  more  highly  than  the  right  of 
suffrage,  are  deterred  from  voting  by  this  consideration 
alone. 

2.  It  makes  it  a  difficult  and  disagreeable  task  for  quiet, 
orderly  people,  and  especially  for  the  sick,  lame,  and  infirm, 
to  press  their  way  through  the  throng,  and  many  of  these  are 
thereby  deterred  from  voting. 

3.  It  makes  it  impossible  to  consider  with  deliberation 
and  decide  intelligently  questions  arising  at  the  polls  as  to 
the  qualifications  of  persons  whose  votes  are  challenged,  and 
this  leads  to  erroneous  rulings.  But,  what  is  worse,  it  affords 
evil-minded  persons  the  opportunity,  by  frequent  challenges 
and  by  unnecessary  discussion,  to  so  delay  the  proceedings  as 
to  consume  the  day  and  exclude  large  numbers  of  legal 
voters,  who  by  these  interruptions,  are  prevented  from  reach- 
ing the  polls  within  the  time  required. 

4.  The  practice  of  crowding  the  polls  by  the  members  of 
one  party,  who  open  the  way  for  their  friends  and  put  all 
possible  obstacles  in  the  way  of  their  opponents,  is  frequently 
resorted  to  as  a  means  of  defeating  a  full  and  fair  vote. 

§  6T5.  All  these  mischiefs  can  be  remedied  by  requiring 
a  multiplication  of  voting  precincts  to  such  an  extent  that 
only  a  limited  number  of  voters — say  not  over  three  hundred 
— shall  be  residentg  of,  and  voters  in  any  one  precinct.  This, 
with  a  further  provision  requiring  every  voter  to  register  and 
vote  in  his  own  precinct  and  in  no  other,  would,  if  adopted 
in  all  the  States,  work  a  reform  of  vast  importance  and  con- 
sequence. This  very  important  subject  of  legislation  is  by 
no  means  the  most  difficult  one  with  which  our  law-makers 
have  to  deal.  The  task  of  providing  against  the  most  crying 
evils  of  our  system  of  election  laws  should  be  approached 
with  the  conviction  that  the  people  can  well  afford  to  be  put 
to  some  pains  and  expense  in  order  to  protect  the  purity  of 
the  ballot,  and,  if  thus  approached,  the  problem  will  be 
found  very  easy  of  solution.     The  multiplication  of  voting 


490  ELECTIONS.  [chap.  XXI. 

precincts  will  prove  an  effectual  remedy  for  all  the  evils 
which  result  from  overcrowding  the  polling  places,  some  of 
which  are  specified  above.  A  properly  guarded  statute  upon 
this  subject  would  secure  as  a  rule,  snfRcient  time  and 
opportunity  at  each  poll  for  the  orderly,  deliberate  and  satis- 
factory transaction  of  the  business  of  receiving  and  deposit- 
ing the  ballots  of  all  legal  voters,  and  for  the  examination 
and  decision  of  disputed  questions  arising  at  the  election. 
Let  us  suppose  that  a  population  containing  three  hundred 
voters  be  the  basis  upon  which  election  precincts  are  to  be 
organized,  who  does  not  see  that,  with  only  that  number  of 
votes  to  be  received  in  the  course  of  the  day,  the  election 
could  be  conducted  decently  and  in  order?  Contrast  such  an 
election  with  the  attempt  in  a  great  city  to  receive  the  ballots 
of  many  thousands  of  voters  and  pass  upon  hundreds  of 
challenges  1 

§  BYfi.  In  connection  with  the  increase  of  the  number, 
and  the  reduction  of  the  size,  ot  precincts,  there  should  be  pro- 
vided a  complete  registration,  and  by  this  is  meant  an 
enumeration  of  the  legal  voters  of  each  precinct,  made  with 
the  utmost  possible  care.  By  requiring  that  each  precinct 
shall  be  small  in  the  sense  of  containing  only  a  limited 
number  of  voters,  and  by  appointing  a  board  of  registration 
for  each  precinct,  it  will  be  practicable  and  easy  to  enroll 
every  voter.  This  process  is  especially  necessary  in  the  city 
precincts,  and  its  application  only  to  them  would  probably  be 
entirely  sufficient.  If  the  precinct  is  not  too  large  in  the 
country,  the  judge  of  the  election  or  the  bystanders  will  be 
able  to  recognize  the  voters,  with  rare  exceptions.  But  in 
the  cities,  where  the  registry  must  be  relied  on,  provisions 
should  be  made  to  render  it  accurate,  and  none  but  registered 
voters  should  be  allowed  to  vote.  The  persons  preparing  the 
lists  should  be  required,  if  necessary,  to  go  from  house  to 
house,  and  by  all  reasonable  means  to  make  sure  that  no  legal 
voter  is  omitted,  and  the  voters  themselves  should  be  made 
to  know  that  they  must  register  if  they  wish  to  enjoy  the 


CHAP.  XXI.]  STATUTOKY   BEGULATION.  491 

franclii&e.  Whoever  neglects  to  enroll  himself  as  a  voter, 
can  not  complain  that  he  is  not  allowed  to  vote.  The  registry 
list  should  be  printed  or  written,  and  posted  up  at  the  most 
public  places  in  the  precinct  at  least  ten  days  prior  to  the  day 
of  election,  and  corrections  and  additions  should  be  made  up 
to  the  day  before  the  election.  With  these  two  requirements, 
namely,  small  precincts  and  complete  registration,  how  easy 
becomes  the  task  of  receiving  and  depositing  in  the  box  the 
ballots  of  all  who  are  entitled  to  vote!  There  can  be  no 
objection  to  these  provisions,  except  that  they  propose  a 
multiplication  of  election  officers,  and  some  additional  labor 
and  expense.  To  this  objection  we  reply  that  the  end  is  so 
important  that,  in  comparison  with  it,  the  trouble  and 
expense  made  necessary  to  secure  it  are  not  worthy  of  a 
moment's  attention.  If,  however,  the  cost  must  be  considered, 
it  may  be  suggested  that  by  having  fewer  elections,  a  corre- 
sponding saving  would  be  made.  Let  our  officials  be  chosen 
for  longer  terms.  This  would  save  much  in  the  way  of 
expense,  and  at  the  same  time  benefit  the  people  by  relieving 
them  from  the  continual  excitement  and  agitation  caused  by 
the  struggle  of  parties  for  office  and  power.  Another  great 
advantage  would  result  from  the  adoption  of  small  precincts. 
The  voters  would  be  very  generally  known  to  each  other,  and 
in  no  single  precinct  would  it  be  possible  for  any  considerable 
number  of  non-residents,  or  otherwise  disqualified  persons  to 
cast  fraudulent  votes  without  detection.  Nor  would  it  be 
possible  for  fraudulent  voters  to  personate  absent  or  deceased 
persons.  In  a  precinct  composed  of  only  a  small  number  of 
voters,  generally  known  to  each  other,  such  frauds  would  be 
impossible. 

§  677-  It  may  be  said  that  some  of  the  worst  frauds  are 
committed  with  the  assistance  or  connivance  of  the  officers 
of  election,  and  that,  therefore,  fraud  in  the  election  or  in  the 
count  would  be  possible,  notwithstanding  the  reduction  of  the 
size  of  precincts.  This  is  very  true,  and  the  suggestion 
brings  us  to  the  next  essential  of  an  efficient  election  law, 


492  ELECTIONS.  [chap.  XXI. 

which  is  such  provision  as  will  prevent  the  selection  of  purely 
partisan  election  boards.  All  parties  in  interest  should  be 
represented  in  each  board  of  election  officers,  and  by  wit- 
nesses to  be  present.  The  officers  of  the  election  should  be 
required  to  perform  all  their  official  duties  in  the  presence  of 
each  other  and  in  the  presence  of  a  limited  number  of 
witnesses  representing  the  several  parties  to  the  contest.  No 
conidserable  fraud  can  be  committed  by  an  election  officer 
without  the  knowledge  of  all  the  members  of  the  board; 
and,  therefore,  great  security  is  to  be  found  in  a  statute  re- 
quiring all  sides  to  be  represented  upon  such  boards.  Add 
to  this  a  provision  requiring  the  admission  to  the  room 
where  the  ballots  are  received,  deposited  and  counted,  of  at 
least  one  witness  on  behalf  of  each  party  interested,  and 
great  frauds  with  the  knowledge  or  connivance  of  the  board 
will  be  become  practically  impossible.  The  witnesses  should 
not  be  clothed  with  authority  to  interfere  (otherwise  than  any 
citizen  might,  through  the  proper  judicial  proceedings) 
with  the  action  of  the  officers;  but  should  be  permitted  to 
witness  every  step  in  the  progress  of  the  election  and  the 
count,  and  to  verify  the  correctness  of  the  same.  Officers 
of  the  law  who  propose  to  do  their  duty,  and  nothing  more 
nor  less,  can  not  reasonably  object  to  the  presence  of  wit- 
nesses representing  the  parties  most  interested,  and  officers 
who  are  capable  of  a  violation  of  duty  should  not  be  per- 
mitted to  object.  It  is  a  safe  and  sound  principle,  and  one 
which  ought  to  be  applied  to  the  preparation  of  election  laws, 
that  men  are  not  apt  to  commit  crime  in  the  presence  of 
witnesses.  Let  the  law  be  so  framed  that  every  step,  from 
the  opening  of  the  polls  to  the  completion  of  the  count  and 
the  announcement  of  the  result,  shall  be  taken  in  the  presence 
of  at  least  two  intelligent  witnesses  representing  opposing 
candidates,  and  the  chances  of  successful  fraud  will  be 
reduced  to  the  minimum. 

S  (^'79i.     There  is  another  mode  of  cheating  which  demands 
attention,  and  should  be  guarded  against  by  legislation;  and 


CHAP.  XXI.]  STATUTORY   KEGULATION.  493 

that  is,  by  tampering  with  the  ballots  after  they  are  cast  and 
before  they  are  counted.  This  is  generally  done  after  the 
polls  are  closed.  If  the  law  permits,  the  board  is  apt  to  ad- 
journ and  its  members  to  separate,  for  a  time,  during  which 
a  strict  and  honest  watch  over  the  ballot-box  is  not  always 
kept.  The  only  remedy  is  to  require  the  votes  to  be  counted 
immediately  after  the  closing  of  the  polls,  and  to  strictly 
forbid  the  separation  or  adjournment  of  the  board  until  the 
count  is  completed  and  the  returns  signed. 

It  is  of  the  utmost  importance  that  the  statutes  of  every 
State  should  imperatively  require  an  immediate  canvass  by 
officers  and  before  witnesses  representing  both  sides. 

"What  would  the  people  of  this  country  say  to  a  proposi- 
tion that  Congress  and  our  State  Legislatures  should  sit  with 
closed  doors,  excluding  all  witnesses  from  their  presence,  or 
that  courts  and  juries  should  try  causes  in  secret?  The  sug- 
gestion, would,  of  course,  meet  with  a  storm  of  dissent  and 
denunciation  from  all  parts  of  the  land.  With  equal,  if  not 
greater  reason,  may  the  people  demand  the  utmost  publicity 
in  the  proceedings  of  a  popular  election,  whereby  Congresses 
and  Legislatures  are  made  and  unmade. 

S  679.  Legislation  upon  this  subject  should  not  be  based 
upon  the  theory  that  officers  of  election  will  always  do  right. 
If  that  were  the  fact,  no  penal  election  laws  would  be  neces- 
sary. On  the  contrary,  the  law  should,  if  possible,  be  so 
framed  that  an  election  officer  shall  not,  if  he  would,  defraud 
the  electors  without  exposure  and  punishment.  In  this  con- 
nection is  further  seen  the  importance  of  the  first  named 
essential  of  an  efficient  election  law,  namely,  small  voting 
precincts;  for  if  the  number  of  ballots  to  be  counted  does  not 
exceed  three  hundred,  the  time  required  for  the  canvass  will 
not  be  great,  and  the  work  can  conveniently  be  done  without 
an  adjournment  or  separation  of  the  board. 

§  680.  It  is  scarcely  necessary  to  say  that  no  statute  regu- 
lating elections  can  be  complete  without  containing  ample 
provision  for  the  prevention  of  every  species  of  intimidation 


494  ELECTIONS.  [OHAP.  XXL 

of  voters,  whether  bj  violence,  the  exhibition  of  force, 
threats,  or  other  means.  In  a  well  ordered  community  this 
crime  will  be  rarely  committed,  and  in  every  such  commu- 
nity public  opinion  will  demand  its  prompt  and  severe  pun- 
ishment. The  law  should  be  so  framed  as  to  guard  with 
scrupulous  care  the  perfect  freedom  of  the  ballot,  and  every 
attempt  to  rob  even  the  poorest  and  weakest  elector  of  his 
free  choice  should  be  regarded  as  a  high  crime,  since  the  rights 
of  all  are  involved  in  the  question  of  the  protection  of  the 
rights  of  each. 

§  681.  Another  mode  of  cheating  at  elections  is  that 
known  as  the  tissue-ballot  fraud  and  other  kindred  contri- 
vances, by  means  of  which  one  person  may  deposit  in  the  box 
a  number  of  ballots.  For  this  a  plain,  simple  and  effectual 
remedy  will  be  found  in  the  enactment  of  a  law  prohibiting 
altogether  the  employment  of  such  ballots,  and  forbidding 
the  election  board  to  count  them  if  cast.  This  can  be  ac- 
complished either  by  fixing  the  size  of  the  ballots  to  be  used, 
or  by  requiring  the  voter  to  place  his  ballot  in  an  envelope 
containing  nothing  else,  and  hand  it  thus  to  the  officer 
authorized  to  receive  it. 

§  682.  From  what  has  now  been  said  it  will  be  seen  that 
every  efficient  election  law  must,  among  other  things,  pro- 
vide: 

1.  For  small  voting  precincts. 

2.  That  an  elector  shall  vote  only  in  the  precinct  of  hit 
residence.  ~^ 

3.  For  complete  registration,  especially  in  cities,  and  only 
persons  registered  to  be  allowed  to  vote. 

4.  For  representation  of  all  parties  on  boards  of  election 
and  registration. 

5.  For  the  presence  with  the  officers  of  election,  at  all 
stages  of  the  proceedings,  of  witnesses  representing  the  par- 
ties in  interest. 

6.  For  a  canyass  of  the  vote  immediatelj  upon  the  dose 


CHAP.  XXI.]  STATUTORY   KEGULATIdf.  495 

of  the  polls,  and  without  an  adjonrnraent  or  separation  of  the 
board. 

7.  For  the  punishment  of  violence  *nd  intimidation. 

8.  For  the  prohibition  of  the  use  of  tissue  ballots,  and 
kindred  fraudulent  contrivances,  including  the  use  of  printed 
slips  pasted  over  names,  and  of  bailofts  made  to  resemble  a 
regular  ticket  of  one  partj,  but  with  the  name  of  one  or  more 
candidates  of  the  opposite  party  in^-crpolated  therein. 

9.  For  the  prohibition  of  th'B  crowding  of  the  polling 
places  by  standing,  or  distribirtiag  tickets,  within  fifty  feet 
thereof. 

These,  in  addition  to  the  ordinary  directory  provisions,  are 
essential.  Experience  will  doubtless  show  the  necessity  for 
other  and  further  enactment?. 

§  683.  Let  us  now  refer  to  some  existing  election  laws, 
in  order  to  show  how  far  they  are  deficient  if  judged  by  these 
requirements. 

In  most  of  the  States  the  statutory  provisions  regulating 
the  formation  and  fixing  the  extent  of  election  precincts,  are 
exceedingly  imperfect.  In  probably  a  majority  of  cases  the 
subject  is  committed  absolutely  to  certain  county  officers — as 
for  example,  in  Alabama,  Colorado,  Florida  and  Nebraska,  to 
the  county  commissioners;  in  Arkansas  and  California,  to  the 
county  supervisors;  in  North  Carolina,  to  the  board  of  jus- 
tices of  the  peace;  and  in  Tennessee,  Texas  and  West  Vir- 
ginia, to  the  county  court.  In  at  least  twenty-four  States 
neither  the  number  nor  size  of  precincts  is  fixed  by  law.  In 
several  States,  towns  or  townships  in  the  country  and  wards 
in  the  cities  are  constituted  election  precincts,  which  is  a  very 
excellent  arrangement,  so  far  as  the  rural  districts  are  con- 
cerned, but  often  works  very  badly  in  cities  where  the  wards 
are  generally  altogether  too  large  and  populous  for  convenient 
election  precincts.  In  two  States  only  (New  York  and  Ore- 
gon) do  we  find  such  legislation  on  this  point  as  seems  to  be 
required.  In  Oregon  it  is  provided  that  election  precincts 
shall  not  contain  more  than  three  hundred  voters,  and  in  New 


496  ELECTIONS.  [chap.  XXI. 

York  the  maximum  in  cities  is  eight  hundred  voters.  In 
those  States  where  the  matter  is  confided  to  local  officers  (and 
they  include  a  great  majority  of  the  States),  there  is  great 
temptation  to  partiality  and  injustice  in  the  designation  of 
precincts  Mid  of  voting  places.  Purely  partisan  considera- 
tions too  often  control  the  action  of  the  local  authorities. 

In  some  instances  it  would  seem  that  polling  places  have 
been  arranged  with  a  view  to  render  it  very  inconvenient,  if 
not  impossible,  for  large  numbers  of  electors  to  cast  their 
votes. 

§  684.  By  act  of  March  4, 1887,  the  Legislature  of  Kan- 
sas wisely  provided  that  no  person  should  distribute  tickets 
or  remain  standing  within  fifty  feet  of  the  polls  during  the 
hours  that  the  polls  are  open.  The  purpose  of  this  enact- 
ment is  to  prevent  the  crowding  of  the  polling  places. 

§  685.  A  number  of  the  States  have  enacted  registry 
laws.  Very  few  of  them,  however,  contain  provisions  limit- 
ing the  right  of  voting  to  registered  electors,  and  for  making 
the  registry  perfect  and  complete  in  advance  of  the  day  of 
voting.  These,  as  we  have  seen,  are  very  necessary  provisions. 
Any  statute  that  leaves  open  the  question  of  the  right  of  non- 
registered  persons  to  vote,  and  devolves  the  duty  of  deciding 
in  each  case  upon  the  election  board,  on  election  day,  will 
prove  a  frail  barrier  against  fraud.  Let  the  registry  list  be 
prepared  with  the  most  painstaking  care,  by  a  board  of  regis- 
tration composed  of  persons  belonging  to  the  difierent  politi- 
cal parties;  and  let  all  persons  not  registered  be  excluded 
from  the  privilege  of  voting. 

§  686.  As  to  the  place  of  voting,  some  of  the  States  still 
continue  the  vicious  practice  of  permitting  an  elector  to  vote 
anywhere  in  the  county  of  his  residence.  Such  seems  to  be 
the  law  in  Arkansas,  California,  Georgia,  Kentucky  and  Ore- 
gon. It  is,  however,  gratifying  to  be  able  to  state  that  the 
tendency  of  legislation  is  very  strongly  toward  the  sound  and 
»aliitary  doctrine  that  each  elector  should  be  required  to  vote 


CHAP.  XXI.]  STATUTORY   REGULATION.  497 

in  the  neighborhood  of  his  residence,  and  where  he  is  likely 
to  be  known  to  election  officers  and  bystanders. 

§  687.  Several  of  the  States  have  recognized  the  impor- 
tance of  providing  for  the  presence  with  the  election  officers 
of  witnesses  representing  the  parties  to  the  contest — a  most 
important  step  in  the  right  direction,  and  one  which  every 
State  should  adopt.  For  example,  the  law  of  Alabama  pro- 
vides for  the  presence  of  iive  of  each  party;  that  of  Florida 
provides  for  the  presence  of  one  representative  of  each  politi- 
cal party  that  has  nominated  candidates;  that  of  Illinois,  for 
the  presence  of  two  legal  voters  of  each  party  to  the  contest; 
those  of  Kansas  and  Oregon  permit  the  presence  of  the  can- 
didates in  person,  or  of  not  exceeding  three  of  their  friends. 
Similar  statutes  are  also  to  be  found  in  Pennsylvania  and  Yir- 
ginia. 

The  very  important  requirement  that  the  board  of  election 
officers  should  be  composed  of  members  of  different  political 
parties,  is  omitted  from  the  statutes  of  twenty-two  States. 
Comment  upon  this  fact  is  quite  unnecessary. 

§'688.  The  equally  necessary  requirement  that  there 
shall  be  a  count  of  the  votes  immediately  upon  the  close  of 
the  polls  is,  I  am  glad  to  say,  to  be  found  in  the  statutes  of 
nearly  all  the  States.  A  few,  however,  have  omitted  it.  Thus, 
in  Mississippi,  if  the  canvass  is  not  finished  by  12  p.  m.,  it 
may  be  completed  the  next  day.  And  in  South  Carolina  it 
is  provided  that  the  board  of  managers  may  have  three  days: 
in  which  to  deliver  to  the  commissioners  of  election  the  poll 
list  and  the  boxes  containing  the  ballots,  and  that  t^e  com- 
missioners of  election  shall  meet  at  the  county  seat  on  the 
Tuesday  next  after  the  election,  and  proceed  to  count  the 
votes  of  the  county.  In  this  State  there  is  no  law  providing 
for  til?  count  of  the  precinct  vote  at  the  place  of  voting,  but. 
both  boxes  and  ballots  are  to  be  carried  to  the  county  seat 
and  tiiere  canvassed  by  a  board  of  commissioners,  nearly  a 
week  a&er  the  close  of  the  polls.  This  statate  reads  as  if  it 
might  little  been  &«med  with  &  view  to  provide  ample  oppor- 
33 


498  ELECTIONS.  [chap.  XXI. 

tunity  for  tampering  with  tlie  ballots  between  the  day  of  elec- 
tion and  the  day  of  counting. 

§  689.  The  form  and  size  of  the  ballot  are  regulated  by 
law  in  but  few  of  the  States.  In  twenty-two  States  no  law 
is  found  upon  the  subject.  In  several  others  it  is  provided 
that  all  ballots  shall  be  printed  or  written  on  plain  white 
paper.  In  CaHfomia  they  are  required  to  be  four  inches  in 
width  and  twelve  inches  in  length,  and  there  is  a  similar 
statute  in  Nevada.  Except  in  these  two  States  there  is  no 
law  to  forbid  the  use  of  a  ballot  printed  in  the  finest  pos- 
sible type,  and  on  the  smallest  possible  piece  of  paper.  It  is 
well  known  that  the  absence  of  this  regulation  has  given  rise' 
to  some  very  gross  frauds  in  recent  years. 

§  690.     A  common  method  of  fraud  is  by  printing  slips 
containing  a  candidate's  name  and  pasting  them  over  the  name 
of  another  candidate  which  has  been  printed  upon  a  particular 
ticket;  or  by  printing  tickets  resembling  those  of  one  or  the< 
other  of  the  competing  parties,  but  with  the  name  of  some  onei 
candidate  thereon  omitted  and  that  of  his  opponent  substituted. 
By  these  and  similar  means  voters  are  often  deceived,  espe- 
cially where  the  ballots  contain  numerous  names.     To  pre- 
vent fraads  of  tibis  character,  statutes  are  sometimes  enacted 
rendering  invalid  all  ballots  of  the  character  here  indicated 
and   requiring  their  rejection  by  the  canvassing   officers.* 
Su^  le^lation  is  well  calculated  to  suppress  the  evil  prae- 
tioM  above  named,  and  the  instances  in  which  any  injustice 
will  be   caused   thereby   vsdll  be  rare,   especisdly  after  the 
statute  becomes  familiar  to  the  people. 

^  See  act  of  Kansas  LegklAture,  approved  Mu«h  i,  1887,  Sess.  Jjkwu^ 
page  ms. 


CHAPTER  XXII. 

THE  AUSTRALIAN  BALLOT  SYSTEM. 

691.  Origin  of  the  system  and  introduction  in  other  countries. 

692.  Introduction  in  the  United  States. 

693.  Provision  for  an  official  ballot. 

694.  Directions  governing  printing  of  ballots. 

695.  Size  and  style  of,  and  arrangement  of  names  upon  the  ballots. 

696.  Rule  where  one  candidate  is  named  for  same  oflSce  by  two  or 

more  parties. 

697.  Manner  of  nominating  candidates  and  filing  certificates  of  nom- 

ination. 

698.  Duty  of  Secretary  of  State  when  certificates  of  nomination  are 

filed  by  rival  factions  of  a  party. 

699.  The  limitation  of  the  right  to  have  ballots  printed  at  public  ex- 

pense and  to  have  names  of  candidates  printed  thereon,  not 
unconstitutionaL 

700.  Right  of  the  voter  to  vote  for  the  person  of  his  choice. 

701.  Right  of  a  political  convention  to  delegate  authority  to  make 

nominations. 
703.    A  candidate  nominated  by  individual  electors  not  the  nominee 
of  a  political  party. 

703.  Nomination  papers;  how  signed. 

704.  Mass  conventions  not  prohibited  in  Minnesota. 

705.  Provisions  of  the  statute  concerning  certificates  of  nomination; 

mandatory  or  directory. 

706.  Other  provisions  liberally  construed. 

707.  What  constitutes  filing  of  certificate  of  nomination. 

708.  Petitioners  may  proceed  by  mandamus  to  compel  officer  to  oei^ 

tify  the  name  of  a  candidate. 

708.  Effect  of  wrongful  certificate  as  to  a  part  of  the  candidates 

upon  the  ballot. 

709.  Certificates  for  filling  vacancies. 

710.  Printing  and  distribution  of  sample  ballots. 

711.  Sample  ballots  voted  by  mistake;  effect  of. 

713.  Appointment  of  judges,  clerks,  challengers  and  watchers. 

713.  Voting  compartments. 

714.  Act  of  voting;  how  accomplished. 

715.  Provision  requiring  voter  to  prepare  ballot  in  voting  compli- 

ment. 


500  ELECTIONS.  [chap.  XXII. 

§  716.    Provision  requiring  initials  of  two  judges  of  opposite  parties 
upon  the  ballot  not  mandatory. 

717.  The  requirement  that  the  ballot  must  bear  the  initials  of  a 

judge  of  election  held  unconstitutional  in  Nevada 

718.  Assistance  to  disabled  voters. 

719.  Assistance,  how  rendered. 

720.  Provisions  defining  manner  of  marking  ballot  generally  held  to 

be  mandatory. 

721.  Use  of  distinguishing  marks. 

722.  Effect  of  marks  accidentally  made. 

723.  Effect  where  voter  writes  his  name  upon  the  ballot. 

724    General  principle  applicable  in  determining  whether  provisions 
are  mandatory  or  directory. 

725.  Primary  elections  in  Kentucky  held  under  Australian  system. 

726.  Separate  ballots  and  ballot-boxes  provided  for  women  in  some 

States. 

727.  General  provisions  for  the  prevention  of  fraud. 

728.  Use  of  voting  machines  authorized  in  Michigan  and  New  York. 

729.  Voting  machines;  how  constructed  and  operated, 

§  691.  The  Australian  Ballot  System  is  said  to  have  been 
the  conception  of  Francis  S.  Dutton,  member  of  the  Legis- 
lature of  South  Australia  from  1851  to  1865.  The  elections 
act  of  1857-58  embodied  his  idea  of  the  secret  ballot,  and  is 
the  basis  of  the  system  now  generally  in  force  in  the  United 
States  as  well  as  in  England  and  upon  the  continent  of 
Europe.  The  measure,  though  first  agitated  in  South  Aus- 
tralia, first  became  a  law  in  Yictoria  in  1856.  It  was  adopted 
in  Tasmania  and  New  South  Wales  in  1858,  by  'New  Zealand 
in  1870,  and  later  by  Queensland  and  West  Australia.  On 
May  30,  1872,  the  English  Ballot  Act  (Statutes  35  and  36 
Yictoria,  ch.  33)  was  passed  by  the  English  Commons.  It 
contains  the  salient  features  of  the  South  Australian  act, 
modified  and  adapted  to  new  conditions.  Following  its 
adoption  by  the  mother  country  came  the  introduction  of 
the  system  in  British  Columbia  in  1873;^  in  the  province  of 
Ontario,  March  24, 1874  ;2  in  Canada,  May  26, 1874;  ^  in  the 

1  Ballot  Act,  36  Vict,  Na  6. 
«  Ballot  Act,  37  Vict.,  ch.  5. 
«  Dominion  Elections  Act,  37  Viot.,  oh.  9. 


CHAP.  XXII.]  AUSTKALIAN   BALLOT   SYSTEM.  501 

province  of  Quebec,  February  23,  1875;  in  Nova  Scotia, 
May  6,  1875 ;  ^  in  the  Northwest  Territories,  December  18, 
1885,  and  in  Manitoba,  May  28,  1886.' 

The  European  countries  which  have  followed  England  in 
this  reform  are  Belgium,  which  adopted  the  English  system 
somewhat  simplified  on  July  9, 1877,  and  Luxemburg  in  1879, 
while  in  Austria,  Italy  and  Norway  laws  providing  for  the 
secrecy  of  the  ballot  are  in  force,  resembling  in  many  re- 
spects the  Australian  system.' 

§  092.  In  the  United  States,  the  first  States  to  adopt  the 
Australian  ballot  sj^^stem  were  Massachusetts,*  Indiana,**  "Wis- 
consin ®  and  Montana.'^ 

The  successful  operation  of  the  system  as  enacted  in  these 
States  has  led  to  its  general  adoption  by  the  diflferent  States,^ 
and  it  is  now  common  to  every  State  in  the  Union  except 
the  Carolinas,  Georgia  and  Connecticut.  It  is  the  purpose 
of  this  chapter  to  outline  the  salient  features  of  the  system 

iStatutesof  1875,  ch.  36. 

2  Election  Act  of  1886,  ch.  29. 

*  Wigmore's  Australian  Ballot  System,  pp.  3-31. 

*  In  force  November  5,  1889. 

*  Approved  March  6,  1889. 
8Adoptedinl889. 

Un  force  June  1,  1889. 

8  Alabama:  Law  approved  February  21, 1893.  Arkansas:  Law  adopted 
in  March,  1891.  California:  Law  adopted  in  1891 ;  Law  amended  March 
28, 1895.  Colorado:  Law  approved  March  26, 1891;  in  force  June  25, 1891; 
amended  February  27,  1894.  Florida:  Law  approved  May  25,  1895; 
amended  May  30,  1895.  Illinois:  Law  approved  June  22,  1891;  in  force, 
July  1, 1891.  Indiana:  Law  approved  March  6, 1889;  in  force  June,  1890; 
Iowa:  Law  approved  April  2,  1892  (ch,  33,  Acts  1892).  Kansas:  Law 
approved  March  11,  1893  (ch.  78,  Session  Laws  of  1893).  Kentucky: 
Law  adopted  June  30,  1892.  Louisiana:  Law  approved  July  9,  1896 
^Act  No.  137,  Laws  of  1896).  Maine:  Law  adopted  March,  1891  (ch.  102, 
Laws  of  1891);  amended  in  1893  (ch.  267,  Laws  of  1893).  Maryland:  Law 
adopted  in  1890;  amended  in  1896  (ch.  202,  Laws  of  1896).  Massachu- 
setts: Law  in  force  for  first  time  at  State  election,  November  5, 1889 
(Laws  of  1889,  ch.  413);  amended  by  ch.  417,  Laws  of  1893;  amended  by 
ch.  469,  Laws  of  1896.  Michigan:  Law  approved  July  3,  1891  (Public 
Acts  of  1891,  p.  256);  amended  by  Public  Acts  of  1895,  Act  271.    Minn©- 


502  ELECTIONS.  [chap.  XXII. 

as  in  force  in  the  different  States,  and  to  review  the  decis- 
ions of  the  courts  construing  the  laws  so  adopted. 

§  693.  A  distinctive  feature  of  the  law,  common  to  all 
the  States,  is  the  provision  for  an  official  ballot  printed  and 
distributed  by  the  State  or  municipality,  the  use  of  all  other 
ballots  being  prohibited.  In  most  States  provision  is  made 
for  the  number  of  ballots  to  be  printed,^  the  time  when  they 
shall  be  in  the  hands  of  the  election  officers,^  the  manner  of 

sota:  Law  adopted  in  1893  (ch.  4,  Gen.  Laws  of  1893);  amended  in  1895. 
Mississippi:  Law  adopted  November  1,  1890;  took  effect  January  1, 
1891.  Missouri:  Law  adopted  in  1889  (Rev.  Stat.,  ch.  60, art.  3);  amended 
by  Session  Acts  of  1891,  p.  136.  Montana:  Law  in  force  June  1,  1889; 
amended  March  19,  1895.  Nebraska:  Law  approved  March  4,1891.  Ne- 
vada: Law  approved  March  13, 1891.  New  Hampshire:  Law  adopted  in 
1891  (ch.  49,  Laws  of  1891).  New  Jersey:  Law  approved  April  18,  1896; 
in  force  July  4,  1896.  New  York:  Law  adopted  in  1890  (ch.  262,  Laws  of 
1890);  amended  May  27,  1896  (ch.  909,  Laws  of  1896).  North  Dakota: 
Law  adopted  in  1895  (ch.  8,  Rev.  Codes,  1895).  Ohio:  Law  adopted  in 
1891.  Pennsylvania:  Law  approved  June  10,  1893.  Rhode  Island:  Stat- 
utes of  Rhode  Island,  ch.  11.  South  Dakota:  Law  approved  in  1891. 
Tennessee:  Law  approved  May  13,  1890  (ch.  24,  Acts  of  1890);  applies  to 
counties  having  seventy  thousand  inhabitants  and  over,  and  to  cities 
having  nine  thousand  inhabitants  and  over.  Texas:  Law  in  modified 
form  adopted  in  1891  (applies  to  cities  having  ten  thousand  inhabitants 
or  more).  Utah:  Law  adopted  in  1896;  in  force  on  the  5th  day  of  June, 
1896.  Vermont:  Law  adopted  by  Acts  of  1890,  No.  9;  amended  by  Acts 
of  1892,  No.  1;  Gen.  Laws  of  1895,  title  3.  Virginia:  Law  approved 
March  4,  1896.  Washington:  Law  adopted  in  1891.  West  Virginia: 
Law  passed  in  1891  (Acts  of  1891,  ch.  89).  Wisconsin:  Law  adopted  in 
1889;  amended  by  ch.  288,  Laws  of  1893;  revised  in  1896.  Wyoming: 
Law  first  authorized  by  the  Territorial  Legislature  in  1890.  Since  then 
there  have  been  several  amendments. 

1  Statutes  of  Kentucky,  ch.  41,  sec.  1461;  Virginia,  Ballot  Act  of 
March  4,  1896,  sec.  6;  Minnesota,  Gen.  Laws  of  1893,  ch.  4,  sec.  23;  Stat- 
utes of  New  Hampshire,  ch.  33,  sec.  12;  New  Jersey,  Ballot  Reform  Law 
of  1896,  sec.  33;  Missouri,  Laws  of  1893,  p.  153;  Maine,  Laws  of  1893, 
ch.  267,  sec.  12;  Montana,  Political  Code,  sec.  1355;  New  York,  Elec- 
tion Law  of  1896,  art  4,  sec.  86;  Wisconsin,  Election  Law  of  1896, 
sec.  45. 

2  Colorado,  Ballot  Act  of  1891,  sec.  17;  Maryland,  Laws  of  1896,  ch. 
202,  sec.  49;  Vermont,  General  Laws,  title  3,  sec.  96;  Iowa,  sec.  15, 
ch.  33,  Laws  of  1893. 


CHAP.  XXII.]  AUSTKAUAN   BALLOT   SYSTEM.  603 

their  distribution,^  and  the  manner  of  supplying  ballots 
where  the  original  supply  has  been  lost  or  stolen.^ 

§  694.  In  Kentucky,  Ohio,  Pennsylvania,  Tennessee  and 
other  States  the  ballots  are  bound  in  book  form,  with  stubs 
and  perforated  lines  for  convenience  in  detaching ;  the  voter's 
name,  residence  and  registered  number  being  entered  upon 
the  stub.^ 

In  Virginia  the  printer  is  required  to  take  an  oath  that 
he  will  print  no  more  than  the  number  of  ballots  required 
by  the  electoral  board;  that  he  will  destroy  all  ballots 
printed  and  not  delivered  to  the  board ;  will,  as  soon  as  the 
ballots  are  printed,  distribute  the  type  used  for  the  work, 
and  will  communicate  to  no  one  whomsoever  the  size,  style 
or  contents  of  the  ballots.  It  is  further  made  the  duty  of 
the  electoral  board  to  have  one  of  their  number  present  in 
the  room  while  the  ballots  are  being  printed,  to  see  that  the 
undertakings  of  the  oath  are  strictly  complied  with.* 

In  Kentucky,  Michigan,  Indiana,  Minnesota  and  "West 
Virginia  it  is  made  a  felony  for  the  printer  to  deliver  any 
of  the  ballots  to  any  person  other  than  the  proper  offi- 
cer, or  to  knowingly  print  the  ballot  in  any  other  than  the 
prescribed  form,  or  with  any  other  names  thereon,  or  with 
the  names  spelled  or  arranged  in  any  other  way  than  as  di- 
rected by  said  officer. 

In  Ohio  the  printer  is  required  to  give  bond  conditioned 

1  Laws  of  Iowa  of  1892,  ch.  33,  sec.  15;  Ohio  Ballot  Law,  sec.  15;  North 
Dakota,  Revised  Code,  sec.  493;  Colorado,  Ballot  Act  of  1891,  sec.  21; 
Michigan,  Public  Acts  of  1895,  sec.  19;  Pennsylvania,  Ballot  Law  of 
1893,  sec.  17;  Louisiana,  Laws  of  1896,  art.  137,  sec.  70;  Massachusetts, 
Acts  of  1893,  ch.  417,  sec.  141;  Maine,  Laws  of  1893,  ch.  267,  sec.  18; 
New  York,  Election  Laws  of  1896,  art.  4,  sec.  87;  Wisconsin,  Election 
Laws  of  1896,  sec.  47. 

2  Louisiana,  Laws  of  1896,  act  137,  sec.  72;  Mississippi,  Election  Or- 
dinance of  1890,  sec.  8;  Maine,  Laws  of  1893,  ch.  267,  sec.  19;  New  York, 
Election  Laws  of  1896,  art.  4,  sec.  89. 

3  Statutes  of  Kentucky,  ch.  41,  sec.  1461 ;  Statutes  of  California,  sec. 
1198;  Statutes  of  Tennessee,  ch.  24,  sec.  6;  Pennsylvania  Ballot  Act  of 
1893,  sec.  15;  Ohio  Ballot  Law,  sec.  18. 

<  Act  of  March  4,  1896,  sec.  7. 


504:  ELECTIONS.  [CHAP.  XXH. 

for  the  faithful  performance,  pursuant  to  contract,  of  such 
printing  as  may  be  awarded  to  him.^ 

In  some  instances  provision  is  made  for  the  filing  of  a 
proof  copy  of  the  ballot  in  the  proper  ofiBce  for  the  inspec- 
tion of  candidates,  or  chairmen  of  committees  furnishing 
names  of  candidates,  in  order  that  errors  may  be  corrected.^ 

§  695.  The  size  and  style  of  the  ballot  and  the  color  of 
the  paper  and  ink  used  are  almost  universally  prescribed, 
uniformity  of  size,  quality  and  type  being  required.  As  a 
general  rule  the  names  of  all  the  candidates  of  all  parties 
are  printed  upon  each  ballot,  although  in  Il^ew  Jersey  sepa- 
rate tickets  are  provided  for  the  nominees  of  the  different 
political  parties.' 

The  arrangement  of  the  names  of  candidates  is  different 
in  different  States,  the  more  common  method  being  to  print 
each  party  ticket  in  a  separate  column,  with  one  column  for 
individual  nominations.  In  some  cases  the  columns  are  ar- 
ranged arbitrarily  by  statute,  in  others  alphabetically,  accord- 
ing to  the  first  letter  of  the  party  name,  in  others  precedence 
is  given  to  the  party  which  polled  the  largest  number  of 
votes  at  the  last  preceding  general  election.  At  the  head 
of  each  column  is  placed  the  name  of  the  political  party 
whose  nominations  are  contained  therein.  In  many  of  the 
States  the  political  parties  are  required  to  choose  a  party 
emblem  or  symbol,  and  this  is  printed  at  the  head  of  the 
party  ticket  with  the  party  name.* 

In  Massachusetts'  and  New  Harasphire*  the  names  of 
candidates  are  arranged  under  the  designation  of  the  office 
in  alphabetical  order  according  to  the  surnames ;  to  the  name 

1  Ballot  Law,  sec.  15a. 

2  Michigan,  Act  271,  Public  Acts  of  1895,  sea  11. 
» Ballot  Reform  Laws  of  1896,  sec.  32. 

<  There  is  nothing  in  the  law  preventing  two  ©r  more  political  par- 
ties, whether  acting  through  conventions  or  by  petition,  from  selecting 
the  same  individuals  for  one  or  more  of  the  offices  to  be  filled.  Simp- 
ton  V.  Osborn,  52  Kan.,  328. 

»  Acts  of  1893,  ch.  417,  sec.  130. 

•Statutes  of  New  Hampshire,  ch.  33,  sec.  11. 


CHAP.  XXII.]  AUSTKALIAN   BALLOT    SYSTEM.  505 

of  each  candidate  being  added  the  name  of  the  party,  or 
designation  of  the  principle  represented  by  him,  together 
with  his  address.  This  general  arrangement  of  names  of 
candidates  has  also  been  adopted  in  Louisiana,  Colorado, 
Minnesota,  Ehode  Island,  Alabama,  Florida,  Tennessee,  Mon- 
tana, California  and  Nevada.  The  pasting  of  names  upon  a 
ticket  by  a  voter  is  generally,  though  not  in  all  cases,  for- 
bidden. On  the  back  and  outside  of  the  ballot  is  printed 
the  words  "  Official  Ballot,"  followed  by  the  designation  of 
the  polling  place  for  which  the  ballot  is  prepared,  and  usu- 
ally 2^  fac-sirrhile  of  the  signature  of  the  officer  under  whose 
direction  the  ballot  was  printed. 

§  696.  Under  the  law  of  Nebraska  directing  the  names 
of  candidates  to  be  arranged  on  the  ballot  in  alphabetical 
order  according  to  surnames,  it  was  held  in  State  v.  Allen  ^ 
that  the  name  of  each  candidate  should  be  printed  but  once 
upon  the  ballot,  accompanied  by  such  political  or  other  des- 
ignations as  represent  the  different  parties  or  persons  nomi- 
nating him.  But  in  those  States  where  the  tickets  of  the 
different  political  parties  are  printed  in  separate  columns, 
with  a  separate  column  for  independent  nominations,  the 
name  of  a  candidate  nominated  for  the  same  office  by  more 
than  one  party  should  appear  on  the  official  ballot  under 
the  name  or  emblem  of  each  party  or  body  of  voters  nomi- 
nating him.2  An  exception  to  this  rule  is  found  in  Michigan, 
where  the  statute '  prohibits  the  printing  on  the  official  bal- 
lot of  the  name  of  a  candidate  receiving  the  nomination  of 
two  or  more  parties  in  more  than  one  column.*  This  stat- 
ute has  been  declared  by  the  Supreme  Court  of  that  State 
as  a  valid  exercise  of  the  power  of  the  Legislature  to  pass 

143  Neb.,  651;  62  N.  W.  Rep.,  35. 

2  Fisher  v.  Dudley,  74  Md.,  243;  23  AtL  Rep.,  3;  Simpson  r.  Osborn, 
52  Kan.,  328;  34  Pac  Rep.,  747. 

8  Act  of  March  14,  1895. 

^  The  Indiana  statute  contains  a  similar  proyision.  (Gen.  Laws,  ch. 
87,  sec  19.) 


606  ELECTIONS.  [chap.  XXII. 

laws  to  preserve  the  purity  of  elections,  and  not  unconstitu- 
tional because  subversive  of  the  right  to  vote,^ 

§  697.  The  nomination  of  candidates  for  office  under  the 
Australian  system  may  be  made  either  by  conventions  or 
primary  elections  held  by  political  parties  polling  a  certain 
per  cent,  of  the  entire  vote  cast  at  the  last  preceding  gen- 
eral election,  or  by  nomination  papers  signed  by  a  fixed 
number  of  qualified  voters.  Such  nominations  must  be  cer- 
tified as  required  by  law,  and  filed  with  the  proper  election 
officer.' 

Provision  is  made  for  publishing  the  names  of  the  candi- 
dates nominated;  for  the  public  inspection  of  certificates  of 
nomination  and  nomination  papers;  for  the  filing  of  objec- 
tions to  and  decision  of  questions  affecting  the  regularity 
of  nominations ; '  for  the  withdrawal  of  persons  nominated, 
and  for  the  filling  of  vacancies. 

§  698.  The  question  has  arisen  as  to  what  comprises  the 
duty  of  the  Secretary  of  State  when  certificates  of  nomina- 
tions are  filed  with  him  by  rival  factions  of  a  political  party, 
each  claiming  authority  to  represent  the  party.  It  has  been 
decided  in  Michigan*  and  Colorado'  that  the  Secretary  has 
no  authority  to  determine  which  of  two  factions  is  entitled 

iTodd  V.  Board  of  Election  Commissioners,  104  Mich.,  474;  64  N.  W. 
Rep.,  496. 

2  A  certificate  purporting  to  state  nominations  made  by  a  party  con- 
vention without  giving  the  business,  residences  or  business  addresses  of 
the  candidates,  and  signed  by  the  chairman  and  secretary  of  the  con- 
vention, without  the  addition  of  their  residences  and  business  ad- 
dresses, in  disregard  of  the  requirements  of  the  statute,  may  be  properly 
rejected  by  the  Secretary  of  State.  Lucas  v.  Ringsrud,  3  S.  Dak.,  355; 
53  N.  W.  Rep.,  426. 

8  The  ballot  law  of  Missouri  makes  no  provision  for  a  tribunal  to  de- 
termine the  regularity  of  nominations.  The  Supreme  Court  of  that 
State  has  held  that  the  State  committee  of  a  party,  in  accordance  with 
party  usage  and  precedent,  has  authority  to  order  a  new  primary  elec- 
tion for  the  purpose  of  settling  a  dispute  between  the  nominees  of 
rival  factions  of  the  party.  State  v.  Lesueur,  103  Mo.,  253;  15  S,  W. 
Rep.,  539. 

*  Shields  v.  Jacob,  88  Mich.,  164;  56  N.  W.  Rep.,  105. 

•  People  V.  District  Court,  18  Colo.,  26;  31  Pac.  Rep.,  339. 


CHAP.  XXII.]  AUSTRALIAN   BALLOT    SYSTEM.  507 

to  represent  tho  party  for  which  it  assumes  to  act,  and 
where  two  sets  of  nominations  are  made  by  rival  conven- 
tions it  is  the  duty  of  the  Secretary  to  certify  both  sets,  if 
apparently  conformable  to  law;  this  upon  the  theory  that 
in  case  of  doubt  the  course  should  be  followed  which  will 
afford  the  citizen  the  greatest  liberty  in  casting  his  ballot. 
A  somewhat  different  view  has  been  entertained  by  the 
courts  of  Missouri^  and  N'ebraska,^  which  hold  that  though 
the  duties  of  the  Secretary  of  State  in  such  a  case  are  min- 
isterial, still  he  is  not  a  "mere  figurehead  or  automaton, 
moved  about  at  the  whim  or  touch  of  every  eager  applicant ; " 
that  he  is  vested  with  sufficient  discretionary  powers  to  au- 
thorize him  to  consider  before  acting,  and  to  search  and 
inquire  before  reaching  a  conclusion ;  that  in  case  of  objec- 
tion he  should  ascertain  from  the  record  or  from  extrinsic 
evidence  whether  such  candidates  were  in  fact  placed  in 
nomination  by  a  convention  or  assemblage  claiming  to  rep- 
resent a  political  party.' 

§  699.  The  courts  have  been  called  on  to  determine  whether 
the  limitation  of  the  right  to  have  ballots  printed  at  public  ex- 
pense by  restricting  it  to  parties  polling  a  certain  per  cent,  of 
the  vote  cast  at  the  last  general  election,  or  to  a  certain  num- 
ber of  qualified  voters  signing  a  nomination  paper,  is  in  viola- 
tion of  the  constitutional  provision  that  elections  shall  be  free 
and  equal,  and  that  all  laws  regulating  them  shall  be  uni- 
form throughout  the  State.  The  Supreme  Courts  of  Penn- 
sylvania and  New  Jersey  have  upheld  this  provision  as  a 

1  State  V.  Lesueur,  103  Mo.,  253;  15  S.  W.  Eep.,  539. 

« State  V.  Allen,  43  Neb.,  651;  62  N.  W.  Rep.,  35. 

8  Where  candidates  are  nominated  by  petition,  the  Secretary  of  State 
has  no  right  to  file  the  petition  unless  properly  signed  and  acknowledged 
by  the  requisite  number  of  electors.  State  v.  Lesueur  (Mo.),  38  S.  W. 
Rep.,  325.  See,  also,  People  v.  Police  Commissioners,  10  Misc.  Rep.,  200; 
31  N.  Y.  Sup.,  467;  People  v.  Police  Commissioners,  31  N.  Y.  Sup.,  469. 
In  New  York  the  Secretary  of  State  is  authorized  by  statute  to  deter- 
mine the  conflicting  claims  of  rival  factions  of  a  party.  Laws  of  1896, 
ch.  909,  sec.  56. 


508  ELECTIONS.  [chap.  XXII. 

reasonable  regulation  of  the  elective  franchise.  The  former 
court,  in  De  Walt  v.  Bartley^  say : 

"  The  act  does  not  deny  to  any  voter  the  exercise  of  the 
elective  franchise  because  he  happens  to  be  a  member  of  a 
party  which  at  the  last  general  election  polled  less  than 
three  per  cent,  of  the  entire  vote  cast.  The  provision  re- 
ferred to  is  but  a  regulation,  and  we  think  a  reasonable  one, 
in  regard  to  the  printing  of  tickets.  The  use  of  official  bal- 
lots renders  it  absolutely  necessary  to  make  some  regulations 
in  regard  to  nominations  in  order  to  ascertain  what  names 
shall  be  printed  on  the  ballot.  The  right  to  vote  can  only 
be  exercised  by  the  individual  voter.  The  right  to  nom- 
inate, flowing  necessarily  from  the  right  to  vote,  can  only 
be  exercised  by  a  number  of  voters  acting  together." 

In  State  v.  Blach^  the  Supreme  Court  of  ]^ew  Jersey  holds 
that  such  a  restriction  in  no  way  impedes  the  voter  in  the 
exercise  of  his  right  to  vote  for  any  particular  person ;  it 
only  embarrasses  him  in  his  right  to  form  a  party  and  vote 
as  a  member  of  that  party.' 

§  too.  The  statutes  of  most  of  the  States  expressly  per- 
mit the  voter  to  cast  his  ballot  for  the  person  of  his  choice 
for  office,  whether  the  name  of  the  person  he  desires  to  vote 
for  appears  upon  the  printed  ballot  or  not.  Statutes  which 
deny  the  voter  this  privilege  are  in  conflict  with  the  con- 
stitutional provision  guaranteeing  the  right  of  suffrage  to 
every  citizen  possessing  the  requisite  qualifications  and  are 
void.     Legislatures  may  provide  for  the  printing  of  an  offi- 

1 146  Pa.  St.,  529;  24  AtL  Rep.,  185.  See,  also,  Slaymaker  «.  Philips 
(Wyo.),  40  Pac.  Rep.,  971. 

2  54  N.  J.  L.,  446;  24  Atl.  Rep.,  489. 

3  It  has  been  held  in  Missouri  that  the  provisions  of  the  Australian 
ballot  system  as  a  whole  are  not  in  violation  of  the  constitutional  pro- 
vision that  all  elections  shall  be  free  and  open.  State  v.  McMillan,  108 
Mo.,  153;  18  S.  W.  Rep.,  784.  A  candidate  for  office  cannot  compel  elec- 
tion officers  to  cause  his  name  to  be  printed  upon  the  official  ballot 
where  h»  has  not  been  nominated  in  the  manner  provided  by  the  stat- 
ute. Miner  v.  Olin,  159  Mass.,  487;  34  N.  E.  Rep.,  721.  The  law  declared 
constitutional  in  Common  Council  v.  Rush,  82  Mich.,  533;  46  N.  W.  Rep., 
95L 


CHAP.  XXII.]  AUSTKALIAN   BALLOT   SYSTEM.  509 

cial  ballot  and  prohibit  the  use  of  any  other,  but  they  can- 
not restrict  the  elector  in  his  choice  of  candidates,  nor  pro- 
hibit him  from  voting  for  any  other  than  those  whose  names 
appear  on  the  oflBcial  ballot.^ 

§  701.  It  has  been  held  by  the  Supreme  Court  of  Mon- 
tana in  the  case  of  State  v.  Benton^  that  a  political  conven- 
tion may  delegate  to  a  committee  power  to  fill  all  vacancies 
upon  the  party  ticket ;  that  the  exercise  of  this  delegated 
power  by  the  committee  after  the  adjournment  of  the  con- 
vention should  be  regarded  as  the  act  of  the  convention,  and 
that  the  names  of  persons  so  nominated  are  properly  upon 
the  official  ticket.  It  was  further  held  in  the  same  case  that 
a  certificate  of  nomination,  regular  upon  its  face,  and  filed 
with  the  proper  officer,  is  jprima  fade  evidence  of  the  nom- 
ination of  the  person  so  certified. 

§  Y02.  A  candidate  nominated  by  electors  is  not  the 
nominee  of  a  political  party,  but  of  the  individual  electors 
nominating  him,  even  though  all  of  the  electors  signing  the 
nominating  paper  be  members  of  the  same  political  party. 
Such  electors  cannot,  by  choosing  the  name  of  a  political 
party  authorized  to  make  nominations  by  convention,  make 
such  nominee  the  nominee  of  such  party.  Such  a  nominee, 
however,  has  the  right  to  appear  upon  the  official  ticket  as 
the  representative  of  the  political  principle  named  by  the 
electors  nominating  him,  and  such  principle  should  be 
printed  in  type  as  bold  and  significant  as  that  used  in  print- 
ing party  names  in  the  headings  over  party  nominations.' 

§  703.  The  statute  of  Massachusetts  provides  that  "every 
voter  signing  a  nomination  paper  shall  sign  the  same  in  per- 

1  State  V.  Dillon,  32  Fla.,  545;  14  S.  Rep.,  383;  Sanner  v.  Patton,  155 
III,  553;  40  N.  E.  Rep.,  290;  Bowers  u  Smith,  111  Mo.,  45;  17  S.  W.  Rep., 
761;  Eaton  v.  Brown,  96  Cal.,  371;  31  Pac.  Rep.,  250;  People  v.  Shaw, 
133  N.  Y.,  493;  31  N.  E.  Rep.,  512;  People  v.  President,  144  N.  Y.,  616;  39 
N.  E.  Rep.,  641. 

2 13  Mont,  306;  34  Pac.  Rep.,  801. 

3  Atkinson  u  Lay,  115  Ma,  538;  23  S.  W.  Rep.,  481.  See,  also.  In  re 
Madden,  148  N.  Y.,  136;  42  N.  E.  Rep.,  534;  Fernbacher  v.  Roosevelt,  90 
Hun,  441;  35  N.  Y.  Sup.,  898. 


510  ELECTIONS.  [chap.  XXH. 

son,  and  shall  add  to  his  signature  his  place  of  residence, 
with  the  street  and  number  thereof,  if  any."  This  provision 
has  been  construed  by  the  Supreme  Court  of  that  State,  in 
a  criminal  prosecution  for  falsely  making  a  nomination  paper, 
to  mean  that  a  voter  must  either  with  his  own  hand  write 
his  name  and  address,  or  the  signing  must  be  done  at  his 
request  and  in  his  presence,  previous  authority  or  subsequent 
ratification  not  being  sufficient.^ 

§  704.  The  language  of  the  Minnesota  statute  (Sec.  34, 
Ch.  4,  Gen.  Laws  of  1893),  providing  for  nominations  by 
"an  assembly  or  convention  of  delegates  representing  a 
political  party,"  has  been  construed  as  not  prohibiting  polit- 
ical parties  from  holding  mass  conventions  for  the  nomina- 
tion of  candidates  for  office.  The  Court  here,  in  attempting 
to  carry  out  the  supposed  intention  of  the  Legislature,  gave 
to  the  word  "  delegate  "  the  popular,  but  inaccurate,  defini- 
tion, "  a  regularlj'  selected  member  of  a  regular  party  conven- 
tion."« 

§  705.  There  is  some  confl.ict  among  the  authorities  as  to 
whether  the  provisions  of  the  statute  concerning  certificates 
of  nomination  are  to  be  regarded  as  mandatory  or  directory 
merely.  The  first  decision  affecting  this  question  was  by 
the  Supreme  Court  of  Montana  in  Price  v.  Lush?  The 
Court  in  this  case  applied  the  rule  that  where  a  State  adopts 
the  statute  of  another  State  or  country,  the  construction  of 
the  statute  by  the  courts  of  the  latter  is  to  be  received  in 
the  new  jurisdiction  with  all  the  weight  of  authority.  The 
Montana  court  therefore  adopted  what  it  believed  to  be  the 
view  of  the  English  courts,  and  held  that  these  provisions 
are  mandatory,  and  that  the  requirements  of  the  law  for  the 
nomination  of  candidates  for  office  must  be  complied  with 
in  every  particular. 

A  radicall}"^  different  view  has  been  adopted  by  the  Su- 
preme Court  of  Missouri.   In  Bowers  v.  Smith  *  it  was  charged 

1  Commonwealth  v.  Connelly,  163  Mass.,  539;  40  N.  K  Rep.,  8631 

2  Mansion  v.  Mcintosh,  58  Minn.,  525;  60  N.  W.  Rep.,  673. 
»10  Mont.,  61;  24  Pac.  Rep.,  749. 

<  111  Mo.,  45;  20  S.  W.  Rep.,  101. 


CHAP.  XXII.]  AUSTKALTAN   BALLOT   SYSTEM.  511 

that  the  official  ballots  used  at  a  municipal  election  contained 
the  names  of  the  nominees  of  a  political  party  which  had  not 
polled  at  the  last  previous  general  election  the  per  cent,  of 
the  entire  vote  required  by  statute;  also  that  the  list  of 
names  of  candidates  was  not  legally  certified  to  the  County 
Court.  The  Court  refused  to  repudiate  the  votes  cast  for 
these  candidates,  holding  that  the  strict  rule  adopted  by  the 
Montana  court  was  antagonistic  to  the  fundamental  law  of 
Missouri,  and  that  prior  decisions  elsewhere  could  not  prop- 
erly be  followed  if  inconsistent  with  such  law.  The  Court, 
in  referring  to  election  laws  generally,  says : 

"  Strictly  speaking,  all  provisions  of  such  laws  are  manda- 
tory, in  the  sense  that  they  impose  the  duty  of  obedience 
on  those  who  come  within  their  purview.  But  it  does 
not  therefore  follow  that  every  slight  departure  therefrom 
should  taint  the  whole  proceedings  with  a  fatal  blemish. 
Courts  justly  consider  the  chief  purpose  of  such  laws,  namely, 
the  obtaining  of  a  fair  election  and  an  honest  return,  as  par- 
amount in  importance  to  the  minor  requirements  which  pre- 
scribe the  formal  steps  to  reach  that  end,  and,  in  order  not 
to  defeat  the  main  design,  are  frequently  led  to  ignore  such 
innocent  irregularities  of  election  officers  as  are  free  from 
fraud  and  have  not  interfered  with  a  full  and  fair  expression 
of  the  voter's  choice."  ^ 

A  similar  view  has  been  expressed  in  N'ew  York  in  a  case 
where  there  was  a  failure  at  a  town  election  to  file  certifi- 
cates of  nomination,  and  a  neglect  to  prepare  official  ballots, 
the  ballots  used  containing  the  names  of  all  the  candidates 
and  being  treated  as  official  by  the  voters.^    The  weight  of 

1  The  same  court  has,  however,  indicsated  that  the  provisions  of  the 
Missouri  statute  requiring  a  certificate  of  nomination  to  be  acknowl- 
edged in  the  same  manner  as  a  conveyance  of  real  estate  must  be  com- 
plied with.    State  v.  Lesueur,  103  Mo.,  253;  15  S.  W.  Rep.,  539. 

2Montgomery  v.  O'Dell,  67  Hun,  169:  142  N.  Y.,  665.  But  in  another 
case  in  New  York  it  had  been  held  that  the  provision  with  respect  to 
the  time  when  the  certificates  of  nomination  must  be  filed  is  mandatory, 
and  after  the  time  has  passed  a  county  clerk  has  no  right  to  receive 
and  file  nominations.  Matter  of  Cuddeback,  3  App.  Div.,  103;  39  N.  Y. 
Sup.,  388. 


512  ELECTIONS.  [chap.  IXH. 

authority  is  against  a  construction  making  tt  ose  provisions 
"  so  mandatory  ttiat  a  mere  formal  defect  incapable  of  af- 
fecting the  regular  and  orderly  conducting  of  an  election 
or  its  result  should  invalidate  an  election,"  ^  An  examina- 
tion of  these  decisions  will  show,  however,  that  they  are  in- 
fluenced to  some  extent  by  the  failure  of  the  opposing  parties 
or  candidates  to  make  timely  objections  to  names  not  prop- 
erly upon  the  ballot.^ 

§  706.  A  liberal  rule  of  construction  has  been  adopted 
very  generally  with  reference  to  other  portions  of  the  law 
pertaining  to  nominations  and  to  the  form  and  contents  of 
the  ballots.  Thus,  it  has  been  held  that  a  violation  of  the 
provision  that  the  name  of  each  candidate  shall  be  printed 
upon  the  ballot  in  but  one  place  will  not  vitiate  the  vote.* 
Kor  will  a  voter  be  deprived  of  the  right  to  have  his  vote 
counted  because  the  ballot  fails  to  properly  state  the  polit- 
ical affiliation  of  the  candidate;*  nor  because  the  names  of 
all  independent  candidates  are  not  printed  in  one  column  as 
required  by  the  statute ; '  nor  on  account  of  a  failure  to  pub- 
lish the  names  of  candidates  in  exact  conformity  with  the 
law ;  *  nor  because  the  names  of  certain  candidates  are  printed 
under  the  wrong  party  device ;  ^  nor  because  the  officer  of 
election  has  written  the  name  of  a  candidate  upon  a  ticket 
in  correction  of  an  error  in  printing;^  nor  because  an  op- 
portunity has  not  been  afforded  the  voters  to  inspect  the 
ballots.® 

1  State  V.  Barber  (Wyom.),  32  Pac.  Rep.,  li,  26,  28;  Simpson  v.  Osborn, 
52  Kan.,  328. 

2  See,  also,  Allen  v.  Glynn,  17  Colo.,  388;  29  Pac  Rep.,  670. 

8  Miller  v.  Pennoyer,  23  Oreg.,  364;  31  Pac.  Rep.,  830. 
< State  V.  Norris,  37  Neb.,  299;  55  N.  W.  Rep.,  1086. 

6  Murphy  v.  Battle,  155  111.,  182;  40  N.  R  Rep.,  470. 

« Atkinson  v.  Lay,  115  Mo.,  538;  22  S.  W.  Rep.,  670;  People  n  Avery, 
102  Mich.,  572;  61  N.  W.  Rep.,  4;  Allen  v.  Glynn,  17  Colo.,  538;  29  Pac. 
Rep.,  670. 

'  Allen  V.  Glynn,  17  Colo.,  538;  29  Pac.  Rep.,  670.  And  see  Talcott  v. 
Philbrick,  59  Conn.,  478;  20  Atl.  Rep.,  436. 

estate  v.  Van  Camp,  36  Neb.,  9;  54  N.  W.  Rep.,  113. 

9  Lindstrom  v.  Board  of  Canvassers,  94  Mich.,  467;  54  N.  W.  Rep.,  280. 


CHAP.  XXII.]  AUSTRALIAN   BALLOT   SYSTEM.  513 

These  decisions  proceed  upon  the  principle  that,  in  the  ab- 
sence of  fraud,  the  voter  who  has  had  nothing  to  do  with  the 
preparation  of  the  ballot,  nor  with  matters  preliminary  to 
the  election,  should  not  be  deprived  of  the  right  to  have  his 
vote  counted  because  of  the  errors  or  wrongful  acts  of  elec- 
tion officers.^ 

§  707.  The  general  rule  that  a  paper  is  to  be  considered 
as  filed  when  it  is  deposited  in  the  proper  office,  and  that 
the  indorsement  upon  the  paper  by  the  official  is  not  an  es- 
sential part  of  the  act  of  filing,  has  been  very  properly 
applied  to  the  filing  of  certificates  of  nomination.  The  or- 
dinary rules  with  reference  to  the  proof  of  contents  of  lost 
instruments  should,  of  course,  apply  to  lost  certificates,  al- 
though the  statute  usually  makes  provision,  in  such  a  case, 
for  supplying  valid  nominations.^ 

§  708.  "Where  the  Secretary  of  State  refuses  or  neglects 
to  certify  to  the  proper  county  officers  the  name  of  a  candi- 
date nominated  by  petition,  the  petitioners  nominating  such 
candidate  have  such  a  special  and  peculiar  interest  in  having 
his  name  appear  upon  the  official  ballot  as  to  entitle  them 
to  maintain  an  action  to  require  the  Secretary  of  State  to 
certify  the  fact  of  the  candidate's  nomination,  and  they  may 
proceed  by  mandamus  for  that  purpose.' 

But  the  act  of  the  Secretary  of  State  in  wrongfully  certi- 
fying the  names  of  certain  persons  as  the  candidates  of  a 
particular  party  will  not  destroy  the  efficacy  of  ballots  cast 
for  other  candidates  for  other  offices  upon  the  same  ticket 

1  It  has  been  held  in  England  under  the  Australian  ballot  law,  as 
there  adopted,  that  where  a  candidate  had  been  nominated  twice  by 
petition,  one  nomination  being  good  and  the  other  bad,  and  his  name 
had  been  twice  printed  upon  the  ballot  —  once  for  each  nomination,  and 
he  had  received  votes  under  each, —  that  the  bad  nomination  did  not 
avoid  the  good  one,  and  that  all  votes  cast  for  him  under  each  nomina- 
tion should  be  counted  for  him.  Northcote  v.  Pulsford,  L.  R.,  10  C.  P., 
476,  48a 

2Rathbum  v.  Hamilton,  53  Kan.,  470;  37  Pac  Rep.,  2a 

^  Rathburn  v.  Hamilton,  supra. 


514  ELECTIONS.  [chap.  XIH. 

who  were  legally  nominated  and  whose  names  were  legally 
certified.* 

§  709.  In  construing  the  provision  of  the  law  requiring 
certificates  for  filling  vacancies  to  state  for  whom  the  per- 
son nominated  is  to  be  substituted,  and  the  cause  of  the  va- 
cancy, it  has  been  held  in  South  Dakota  that  a  certificate 
which  fails  to  contain  this  information  should  be  rejected 
by  the  Secretary  of  State.'^ 

§  710.  For  the  instruction  of  the  voter  the  law  directs  the 
printing  and  distribution  by  election  officers  of  sample  bal- 
lots, printed  upon  paper  of  a  different  color  from  that  used 
for  the  official  baUot,  and  containing  the  names  of  the  can- 
didates to  be  voted  for,  substantially  in  the  form  of  the  offi- 
cial ballot.  Provision  is  also  made  for  the  publication  in 
newspapers  of  a  list  of  all  nominations  to  be  voted  for,  and 
for  the  posting  and  printing  of  full  instructions  for  the 
guidance  of  the  voter  in  all  matters  pertaining  to  the  depos- 
iting of  his  ballot. 

§  711.  The  statute  of  Kansas  contains  the  usual  provision 
that  the  ballots  shaU  be  printed  on  white  paper.  In  Boyd 
V.  Mills '  it  appeared  that  the  election  officers  of  one  town- 
ship used  the  sample  ballots  printed  on  colored  paper  in  con- 
ducting the  election,  and  returned  all  the  official  ballots 
which  were  printed  on  white  paper.  All  the  ballots  used 
were  of  the  same  color.  The  conclusion  of  the  court  was 
that  the  secrecy  of  the  ballot  had  been  in  no  wise  impaired ; 
and  as  the  use  of  the  colored  ballots  was  an  honest  mistake 
on  the  part  of  the  election  officers,  these  ballots  should  be 
counted. 

§  712.  The  law  provides  for  the  appointment  of  judges 
and  clerks  of  election,  and  defines  their  qualifications  and 

I  Smith  t>.  Harris,  18  Colo.,  274;  32  Pac.  Rep.,  616.  The  fact  that  a  con- 
stitutional amendment  was  npt  printed  in  proper  form  upon  the  ballot 
does  not  give  a  defeated  candidate  ground  for  complaint,  as  it  has  no 
bearing  upon  his  rights.  Atkinson  v.  Lay,  115  Mo.,  538;  22  S.  W.  Rep., 
48L 

»  Lucas  t).  Ringsrud.  3  a  Dak,  355;  53  N.  W.  Rep.,  428w 

«53  Kan.,  594;  37  Pao.  Rep.,  16. 


CHAl'.  XXTI.]  AUSTRALIAN   BALLOT   SYSTKM.  515 

duties.  It  is  customary  to  provide  that  the  different  polit- 
ical parties  shall  be  represented,  and  that  the  election  offi- 
cers shall  not  be-  candidates  to  be  voted  for  at  the  election, 
and  shall  be  able  to  read  and  write  the  English  language. 
In  the  absence  of  fraud,  however,  the  fact  that  the  officers 
of  election  were  not  possessed  of  the  prescribed  qualifica- 
tions will  not  avoid  the  election.  In  such  cases  the  well- 
established  doctrine  of  the  validity  of  the  acts  of  de  facto 
officers  should  be  applied.^ 

The  different  political  parties  are  permitted  to  select  chal- 
lengers and  watchers  to  be  present  at  the  polls  and  to  wit- 
ness the  count.  It  has  been  held  in  Minnesota  that  a 
compliance  with  a  provision  of  this  character  is  not  vital  to 
the  legality  of  the  election  where  no  fraud  is  alleged  and 
where  it  is  not  claimed  that  the  result  of  the  election  has 
been  changed  by  the  omission  or  disregard  of  the  require- 
ment.2 

§  T13.  One  of  the  chief  objects  sought  to  be  accomplished 
by  the  Australian  system  is  to  preserve  the  secrecy  of  the 
ballot.  For  this  purpose  the  polling  places  are  provided 
with  compartments  or  booths,  each  of  sufficient  size  to  ac- 
commodate one  voter  at  a  time,  and  so  constructed  that  the 
voter  is  screened  from  observation  while  preparing  his  bal- 
lot. These  compartments,  as  well  as  the  ballot-boxes,  are 
usually  protected  by  a  guard-rail,  within  which  no  person  is 
permitted  other  than  election  officers,  challengers,  persons 
admitted  for  the  purpose  of  voting,  and  peace  officers  ad- 
mitted by  the  officers  of  election  to  keep  order  and  enforce 
the  law.  I^either  the  voting  booths  nor  the  ballot-boxes 
are  permitted  to  be  hidden  from  the  view  of  those  outside 
the  guard-rail.  A  sufficient  number  of  booths  are  provided 
to  avoid  crowding  and  inconvenience,  and  only  as  many 

iSec.  247  et  seq.;  Opinions  of  Justices,  70  Me.,  565;  People  v.  Avery, 
102  Mich.,  572;  61  N.  W.  Rep.,  4;  Trustees  v.  Garvey,  80  Ky.,  159.  As 
to  effect  of  failure  of  inspectors  to  be  sworn,  see  sec.  525.  As  to  irreg- 
ularities in  opening  and  closing  polls,  see  sees.  162-165. 

2  Soper  V.  Board  of  Commissioners  of  Sibley  Co.,  46  Minn.,  274;  48 
N.  W.  Rep.,  1113. 


516  ELECTIONS.  [chap.  XXH. 

voters  are  admitted  within  the  rail  at  one  time  as  there  are 
booths.  The  presence  of  persons  other  than  those  author- 
ized by  law  in  the  vicinity  of  the  polling  place  is  forbidden. 
§  T14.  The  act  of  voting  is  accomplished  as  follows :  The 
elector  receives  from  the  judges  or  inspectors  of  election  one 
oflBoial  ballot,  upon  which  the  names  or  initials  of  certain  of 
the  election  officers  have  first  been  written.  The  voter  forth- 
with, and  without  leaving  the  voting  place,  retires  alone  to 
one  of  the  voting  compartments,  and  there  prepares  his  bal- 
lot. The  preparation  of  the  ballot  is  accomplished  differ- 
ently in  different  States.  In  most  cases  the  voter  indicates 
his  choice  of  tickets  or  candidates  by  making  a  cross  (x)  at 
the  head  of  the  ticket  for  which,  or  opposite  the  name  of  the 
candidate  for  whom,  he  desires  to  vote,  or  by  writing  in  the 
name  of  the  candidate  of  his  choice  in  a  blank  space  pre- 
pared for  that  purpose.  He  indicates  in  a  similar  manner 
his  answer  to  questions  submitted  to  the  voters.  In  some 
States  the  voter  is  required  to  use  an  official  stamp  instead 
of  a  cross  made  with  ink.  In  Missouri  the  voter  is  directed 
to  cross  out  all  the  groups  except  one,  by  drawing  a  line  or 
lines  lengthwise  through  the  rejected  columns,  and  then 
make  all  changes  on  the  remaining  column  by  striking  out 
such  names  as  he  does  not  wish  to  vote  and  writing  the 
names  of  his  choice  underneath.  The  law  prescribes  that 
the  voter  shall  fold  his  ballot  in  such  a  manner  as  not  to  dis- 
close its  contents,  but  so  that  the  initials  of  the  officers  can 
be  seen.  In  some  cases  the  ballot  is  folded  by  the  officers 
of  election  before  it  is  delivered  to  the  voter.  In  New  Jer- 
sey the  ballot  is  inclosed  in  an  envelope  and  so  deposited 
unsealed  in  the  ballot-box.^  No  elector  is  allowed  to  occupy 
a  voting  compartment  already  occupied  by  another.  If  the 
voter  spoils  a  ballot  through  accident  or  mistake,  he  ma}'^ 
surrender  it  to  the  officers  and  receive  another.  The  length 
of  time  which  he  may  remain  in  the  booth  is  fixed  by  stat- 
ute.'^   In  some  States  he  is  not  permitted  to  converse  with 

1  Ballot  Reform  Laws,  1896,  sec.  226. 

3  A  limitation  of  two  and  one-half  minutes  held  not  so  iinreasonable 


CHAP.  XXII.]  AUSTRALIAN   BALLOT   SYSTEM.  517 

any  one  except  the  election  officers  while  inside  the  inclos- 
ure.  He  is  forbidden  to  disclose  the  contents  of  his  ballot 
before  depositing  it.  At  some  time  during  the  process  of 
voting  the  name  and  address  of  the  voter  is  announced  in  a 
loud  and  distinct  voice  by  an  election  officer.  The  name  of 
the  voter  is  checked  upon  the  poll-list  by  the  officer  having 
the  same  in  charge  immediately  after  the  ballot  is  placed 
in  the  box.  As  soon  as  the  voter  has  deposited  his  ballot, 
he  is  required  to  quit  the  inclosed  space  and  is  not  permitted 
to  return. 

§  715.  The  provision  of  the  statute  requiring  the  voter 
to  retire  alone  to  the  voting  compartment  and  there  pre- 
pare his  ballot  was  considered  by  the  Supreme  Court  of 
Missouri  in  Hall  v.  Schoenecke^  where  six  voters,  five  of 
whom  were  judges  or  clerks  of  election,  prepared  their  bal- 
lots without  going  into  the  booths.  It  was  held  in  this  case 
that  this  section  was  only  intended  to  give  directions  for  the 
guidance  of  the  voter,  and  that  a  failure  to  comply  strictly 
therewith  would  not  invalidate  the  vote  if  the  spirit  of  the 
law  had  not  been  violated. 

§  716.  "Where  the  statute  requires  that  two  judges  "  of 
opposite  political  parties"  shall  place  their  initials  upon  the 
backs  of  all  the  ballots  before  they  are  used  by  the  voters, 
and  provides  further  that  no  ballot  which  has  not  the  in- 
itials of  two  judges  of  election,  in  said  judges'  handwriting, 
on  the  back  thereof,  shall  be  placed  in  the  box,  ballots 
bearing  the  initials  of  two  judges  belonging  to  the  same 
political  party  should  not  be  rejected  where  the  irregularity 
is  the  result  of  ignorance  of  the  requirement,  and  where  no 
fraud  has  been  attempted  or  accomplished.  The  Supreme 
Court  of  Minnesota,  in  reaching  this  conclusion,  assigns  as  a 
reason  that  to  hold  this  provision  mandatory  would  enable 
an  election  judge,  by  misrepresenting  his  politics,  to  dis- 
franchise an  entire  election  precinct,  and  that  the  refusal  of 

as  to  render  the  law  void.    Pearson  v.  Board  of  Supervisors  of  Bruns- 
wick Co.,  91  Va.,  323;  21  S.  E.  Rep.,  48a 
1 128  Mo.,  881;  31  S.  W.  Rep.,  97. 


518  ELECTIONS.  [chap.  XXII. 

all  members  of  the  minority  party  to  serve  as  judges  would 
make  it  possible  for  that  party  to  prevent  the  casting  of  a 
single  legal  vote.^ 

The  same  conclusion  has  been  reached  by  the  Supreme 
Court  of  Indiana  in  a  case  where  the  initials  of  the  clerks  of 
the  election  were  indorsed  on  the  ballots  in  a  place  different 
from  that  required  by  the  statute,  the  Court  expressing  the 
opinion  that  the  purpose  of  the  law  was  as  well  accomplished 
as  if  it  had  been  obeyed  literally.^ 

§  717.  The  statute  of  Nevada  provides  that  any  ballot 
not  bearing  the  initials  of  an  inspector  or  judge  of  election 
shall  not  be  counted.  The  Supreme  Court  of  that  State  has 
decided  that  this  part  of  the  statute  is  in  conflict  with  the 
provision  of  the  State  Constitution  that  all  persons  pos- 
sessing the  requisite  qualifications  shall  be  entitled  to  vote 
at  all  elections,  and  cannot  be  enforced  to  disfranchise  the 
voter.  It  is  held  in  the  same  case  that  the  failure  of  the 
election  officers  to  provide  election  booths  in  compliance 
with  the  law  is  but  an  irregularity,  which  will  not  avoid  the 
election.^ 

§  718.  In  case  of  physical  disability  or  inability  to  read 
or  write  on  the  part  of  the  voter,  the  law  requires  the  offi- 
cers of  election  to  render  him  such  assistance  as  may  be 
necessary  in  preparing  his  ballot,  and  in  some  States  bal- 
lots may  be  received  at  the  door  from  persons  physically 
disabled  from  entering  the  room.*  Such  provisions  are  con- 
stitutional and  not  subject  to  the  objection  that  they  de- 
prive the  voter  of  the  right  to  cast  a  secret  ballot.* 

§  719.  Under  the  statutes  of  some  of  the  States  the  as- 
sistance rendered  a  disabled  voter  must  be  given  privately 

1  State  V.  Gay,  59  Minn.,  6;  60  N.  W.  Rep.,  676. 

2  Parvin  v.  Wimberg,  130  Ind.,  561 ;  80  N.  E.  Rep.,  790.  See,  also.  Slay- 
maker  V.  Philips  (Wyo.),  40  Pac.  Rep.,  971. 

3  Moyer  v.  Van  De  Vanter,  41  Pac.  Rep.,  60. 

<  In  Nevada  a  disabled  voter  may  call  on  any  elector  to  aid  him.  Act 
of  March  13,  1891,  sec.  23.  Intoxication  is  not  a  physical  disability  under 
the  Illinois  law.    Ballot  Law,  1891,  sec.  24. 

8  Pearson  v.  Board  of  Supervisors  of  Brunswick  Co.,  91  Va.,  322;  21 S.  R 
Rep.,  483;  Ellis  v.  May,  99  Mich.,  538;  58  N.  W.  Rep..  483 


CHAP.  XXII.]  AUSTRALIAN   BALLOT   SYSTEM.  519 

in  a  voting  compartment.  In  the  absence  of  such  a  clause 
the  Minnesota  court  has  held  that  the  ballot  of  such  a  voter 
will  not  be  excluded  because  made  up  openly  in  the  pres- 
ence and  hearing  of  the  election  officers  and  other  electors.* 
But  it  was  held  in  that  case  that  the  law  requiring  the  ad- 
ministering of  an  oath  to  such  voters  as  claim  the  right  to 
have  their  ballots  marked  by  another  person  is  mandatory 
and  must  be  strictly  observed.  The  same  provision  in  the 
statute  of  Indiana  has  been  construed  to  be  directory  only, 
the  Court  holding  that  the  right  of  a  voter  to  assistance  de- 
pends not  on  his  declaration,  but  on  the  fact  of  his  disa- 
bility .^  The  provisions  of  the  statutes  of  Michigan  and 
California  with  reference  to  assisting  disabled  voters  in  mark- 
ing their  ballots  have  been  held  by  the  courts  of  those  States 
to  be  mandatory.' 

§  720.  The  provisions  of  the  law  defining  the  manner  in 
which  the  volar  shall  mark  his  ballot  are  generally  held  to 
be  mandatory.  To  permit  the  ballot  to  be  marked  in  a  dif- 
ferent manner  from  that  prescribed  would  be  to  enable  the 
voter  to  place  a  distinguishing  mark  upon  his  ballot,  thereby 
depriving  it  of  its  secrecy,  and  frustrating  the  chief  object 
sought  to  be  obtained  by  the  system.* 

1  State  V.  Gay,  59  Minn.,  6;  60  N.  W.  Rep.,  676.  Under  the  Missouri 
law  the  election  judges  are  not  permitted  to  enter  the  voting  compart- 
ment to  assist  an  elector  to  prepare  his  ballot,  but  must  prepare  the 
ballot  at  the  voter's  dictation  without  leaving  their  respective  positions. 
Session  Laws,  1883,  p.  164. 

2  Montgomery  v.  Oldham,  143  Ind.,  137;  43  N.  E.  Rep.,  474. 

8  Ellis  V.  May,  99  Mich.,  538;  58  N.  W.  Rep.,  483;  Tebbe  v.  Smith,  108 
Cal.,  101;  41  Pac.  Rep.,  454. 

<  Tebbe  u  Smith,  108  Cal.,  101;  41  Pac.  Rep.,  454;  Taylor  v.  Bleakley, 
55  Kan.,  1 ;  39  Pac.  Rep.,  1045,  and  note  to  same  case  in  49  Am.  St.  Rep., 
240;  Richardson  v.  Jamison,  55  Kan.,  16;  39  Pac.  Rep.,  1050;  Whiftan  v. 
Zahorek,  91  Iowa,  93;  59  N.  W.  Rep.,  57;  State  v.  Hogan,  91  Iowa,  510; 
60  N.  W.  Rep.,  108;  Parvin  u  Wimberg,  130  Ind.,  561;  30  N.  E.  Rep.,  790; 
Curran  v.  Clayton,  86  Me.,  43;  29  Atl.  Rep.,  930;  In  re  Vote  Marks,  17  R  L, 
812;  21  Atl.  Rep.,  962;  Ellis  v.  Glaser,  103  Mich.,  405;  61  N.  E.  Rep.,  648; 
Sego  V.  Stoddard  (Ind.),  36  N.  E.  Rep.,  204;  Kirk  v.  Rhodes,  46  Cal.,  398; 
Bechtel  v.  Albin,  134  Ind.,  193;  33  N.  E.  Rep.,  967;  Lay  v.  Parsons,  104 


520  ELECTIONS.  [chap.  XXIL. 

Most  of  the  decisions  holding  that  this  rule  should  be  re- 
laxed sufficiently  to  determine  the  intention  of  an  innocent 
voter  are  based  upon  statutes  containing  peculiar  or  in- 
definite provisions.  Thus,  under  the  section  of  the  Nebraska 
statute  that  "  when  a  ballot  is  sufiiciently  plain  to  gather 
therefrom  a  part  of  the  voter's  intention,  it  shall  be  the 
duty  of  the  judges  of  election  to  count  such  part,"  it  has 
been  held  that  a  ballot  which  the  statute  requires  should  be 
marked  with  ink  should  not  be  rejected  because  marked 
with  a  lead  pencil.^  Likewise  under  the  statute  of  Minne- 
sota, which  does  not  prescribe  any  inflexible  rule  as  to  what 
shall,  or  shall  not,  be  accepted  as  a  cross-mark,  it  has  been 
held  that  "any  mark,  however  crude  and  imperfect  in  form, 
if  it  is  apparent  that  it  was  honestly  intended  as  a  cross- 
mark,  and  for  nothing  else,  must  be  given  effect  as  such."^ 
It  may  be  concluded  that  while  there  is  some  authority  to 
the  contrary,'  the  great  weight  of  authority  in  this  country 
is  in  favor  of  holding  such  provisions  mandatory. 

§  721.  In  most  States  the  use  of  any  mark  upon  a  ballot  by 
means  of  which  it  may  afterwards  be  identified  or  distin- 
guished will  render  the  ballot  void.*  It  has  been  held  in  Mich- 
igan and  Nevada  that  this  provision  applies  only  to  marks 
made  upon  the  ballot  by  the  voter,  and  not  to  marks  made  by 

CaL,  661;  38  Pac.  Rep.,  447;  Vallier  v.  Brakke  (S.  Dak.),  64  N.  W.  Rep., 
180  and  1119;  McKittrick  v.  Pardee  (S.  Dak.),  65  N.  W.  Rep.,  23;  In  re 
Contested  Election  of  School  Directors  of  Little  Beaver  Township,  165 
Pa.  St.,  233;  30  Atl.  Rep.,  955;  State  v.  McEIroy,  '14  La.  Ann.,  796;  People 
V.  Sausalito,  106  CaL,  500;  Parker  v.  Orr,  158  111.,  609. 

•State  V.  Russell,  34  Neb.,  116;  51  N.  W.  Rep.,  465;  Spurgin  v,  Thomp- 
son, 37  Neb.,  39;  55  N.  W.  Rep.,  297. 

2  Pennington  v.  Hare,  60  Minn.,  146;  62  N.  W.  Rep.,  116. 

'Houston  V.  Steele  (Ky.),  34  S.  W.  Rep.,  6;  Johnson  v.  Board  of  Can- 
vassers (Mich.),  59  N.  W.  Rep.,  412;  Coleman  v.  Gernet,  14  Pa.  Ca  Ct  R., 
578. 

*  Tebbe  v.  Smith,  108  CaL,  101;  41  Pao.  Rep.,  454.  The  Supreme  Court 
of  Texas  has  held  that  the  writing  of  the  voter's  name  upon  the  back 
of  his  ticket  will  not  avoid  it.  Hanscom  v.  State  (Tex.),  31  S.  W.  Rep., 
547.  The  Texas  law  is,  however,  a  modification  of  the  system  as  adopted 
in  the  other  States  and  is  less  rigid  in  its  regulationa 


CHAP.  XXn.]  AUSTEALIAN"   BALLOT    SYSTEM.  521 

election  officers  through  mistake.^  But  in  N'ew  York  ballots 
having  the  name  of  one  polling  district  printed  upon  the  backs 
thereof,  and  sent  to  and  used  at  another  district  through  the 
accident  or  design  of  the  county  clerk,  were  rejected  in 
People  V.  Board  of  County  Canvassers^  on  the  ground  that 
the  indorsement  thereon  was  not  as  prescribed  by  law,  and 
was  a  distinguishing  mark  within  the  meaning  of  the  stat- 
ute. This  case  arose,  however,  under  the  New  York  ballot 
law  of  1890,  under  which  separate  tickets  were  prepared  for 
each  political  party,  and  the  error  in  question  occurred  only 
in  respect  to  the  ballots  prepared  for  one  party,  so  that  these 
ballots  became  thereby  distinguishable  from  all  others.  This 
decision  was  by  a  divided  court,  Judges  Peckham  and  An- 
drews filing  dissenting  opinions.  Under  the  present  law  of 
New  York,  providing  for  one  ballot  for  all  parties,  a  differ- 
ent conclusion  has  been  reached.  In  the  recent  case  of  Peo- 
ple V.  Woods^  it  is  held  that  a  ballot  furnished  by  the  State 
is  not  a  marked  ballot  because  of  any  irregularity  in  making 
it  up  or  printing  it.  In  this  case  a  public  official,  charged 
with  the  duty  of  making  up  and  printing  the  ballots,  in- 
serted the  names  of  candidates  in  a  party  column,  not  duly 
nominated  by  such  party.  This  was  held  not  to  invalidate 
such  ballots  cast  by  innocent  voters,  though  done  in  viola- 
tion of  law. 

The  fraudulent  placing  of  distinguishing  marks  upon  bal- 
lots after  they  have  been  deposited  in  the  baUot-box  will  not 
render  them  illegal.* 

§  722.  The  statute  of  Nevada  provides  "  that  any  names, 
words  or  marks,  except  as  in  the  act  provided,  shaU  invali- 
date the  ballot."  It  has,  however,  been  held  under  this  sec- 
tion that  a  mark  inadvertently  or  accidentally  made,  not  for 

iLindstrom  v.  Board  of  Canvassers,  94  Mich.,  467;  64  N.  W.  Rep.,  380: 
Buckner  v.  Lynip  (Nev.),  41  Pac.  Rep.,  762. 
2129  N.  Y.,  395;  29  N.  E.  Rep.,  327. 
» 148  N.  Y.,  142;  42  N.  E.  Rep.,  536. 
<  Attorney-General  v.  Howoroft  (Mich.),  64  N.  W.  Rep.,  654 


522  ELECTIONS.  [chap.  XXH. 

an  evil  purpose,  should  not  be  construed  as  a  distinguishing 
mark.i 

§  723.  The  statute  of  Missouri  provides  that  no  writing 
shall  be  placed  upon  the  back  of  the  ballot  except  the  names 
or  initials  of  two  of  the  judges  of  election  and  the  number 
of  the  ballot.  It  has  been  said  by  the  Supreme  Court  of 
that  State  in  a  recent  case  ^  that  this  provision  refers  to  the 
time  when  the  ballot  was  delivered  to  the  voter,  and  not  to 
the  time  when  it  was  voted ;  and  though  the  intention  of 
the  statute  doubtless  was  to  require  that  the  ballot  should 
have  no  other  writing  upon  it  when  delivered  by  the  voter 
to  the  judges,  still  this  provision  should  not  be  regarded  as 
mandatory,  it  not  having  been  made  so  by  the  statute.  The 
Court  therefore  held  that  a  ballot  on  the  back  of  which  a 
voter  had  written  his  name  was  not  void,  where  it  did  not 
appear  that  the  ballot  was  so  folded  that  the  name  could  be 
seen,  or  that  the  name  was  written  for  the  purpose  of  identi- 
fying the  vote. 

The  soundness  of  this  decision  may  well  be  doubted,  even 
though  the  statute  of  Missouri  does  not  expressly  provide 
for  the  rejection  of  ballots  bearing  distinguishing  marks. 
A  holding  to  the  contrary  would  seem  to  be  more  in  accord 
with  the  spirit  of  the  law,  and  more  likely  to  secure  the 
secrecy  of  the  ballot.  The  Courts  of  Nebraska  and  South 
Dakota  hold  that  ballots  on  which  voters  have  written  their 
names  cannot  be  counted.^ 

§  724.  The  decisions  cited  in  the  preceding  sections  upon 
the  question  whether  the  provisions  of  the  law  are  manda- 
tory or  directory  are  not  entirely  harmonious.  They,  how- 
ever, disclose  a  well-defined  disposition  on  the  part  of  the 
courts  to  distinguish  between  acts  to  be  performed  by  the 
voters,  and  those  devolving  upon  the  public  oificials  charged 
with  the  conduct  of  the  election.     The  w^eight  of  authority 

1  Dennis  v.  Caughlin  (Nev.),  41  Pac  Rep.,  76a 
2Lank£ord  v.  Gebhart,  130  Mo.,  631. 

»Spurgin  v.  Thompson,  37  Neb.,  39;  55  N.  W.  Rep.,  297;  Vallier  u 
Brakke  (S.  Dak.),  64  N.  W.  Rep.,  180. 


CHAP.  XXII.]  AUSTRALIAN   BALLOT   SYSTEM.  623 

IS  clearly  in  favor  of  holding  the  voter,  on  the  one  hand,  to  a 
strict  performance  of  those  things  which  the  law  requires 
of  him,  and  on  the  other  of  relieving  him  from  the  conse- 
quence of  a  failure  on  the  part  of  election  officers  to  perform 
their  duties  according  to  the  letter  of  the  statute  where  such 
failure  has  not  prevented  a  fair  election.  The  justice  of 
this  rule  is  apparent,  and  it  may  be  said  to  be  the  underlying 
principle  to  be  applied  in  determining  this  question.  The 
requirements  of  the  law  upon  the  elector  are  in  the  interest 
of  pure  elections,  and  should  be  complied  with  at  least  in 
substance,  but  to  disfranchise  the  voter  because  of  the  mis- 
takes or  omissions  of  election  officers  would  be  to  put  him 
entirely  at  the  mercy  of  political  manipulators.  The  per- 
formance by  the  election  officers  of  the  duties  imposed  upon 
them  can  be  reasonably  well  secured  by  providing  a  penalty 
for  failure  so  to  do. 

§  725,  In  the  State  of  Kentucky  all  primary  elections 
held  in  that  State  are  conducted  according  to  the  Australian 
system.^  Forty  days'  public  notice  is  required  to  be  given 
of  such  elections,  specifying  the  day  when  the  election  will 
take  place,  the  hours  between  which  it  will  be  held,  the 
offices  for  which  candidates  will  be  nominated,  and  the  places 
at  which  the  polls  will  be  opened.  All  legal  voters  may 
participate  in  such  primary  elections,  but,  in  order  that  none 
but  those  affiliating  with  or  being  members  of  a  political 
party  may  participate  in  a  primary  election  held  by  such 
party,  provision  is  made  for  ascertaining  the  political  affilia- 
tion of  all  voters  at  the  regular  State  registration,  and  for 
recording  the  same  upon  the  State  registration  books.  The 
list  thus  made  up  is  posted  and  may  be  copied  by  the  gov- 
erning authority  of  any  political  party.  Tampering  with 
this  list  is  made  a  criminal  offense.  The  primary  election 
inspectors  are  sworn  in  in  the  same  manner  as  at  general 
elections,  and  are  subject  to  like  penalties  for  offenses  against 
the  law.  The  names  of  candidates  for  office  must  be  sub- 
mitted to  the  party  committee  fifteen  days  before  the  elec- 

1  Art.  12,  ch.  41,  Kentucky  Statutes. 


524  ELECTIONS.  [chap.  XXIL 

tion,  and  persons  complying  with  the  conditions  imposed  by 
the  committee  must  be  declared  candidates.  The  expense  of 
printing  ballots  and  notices,  together  with  all  other  expense 
of  the  primaries,  is  borne  by  the  political  party  holding  the 
same,  but  the  ballots  must  be  printed  under  the  same  re- 
strictions provided  by  the  general  law  of  the  State  for  the 
printing  of  ballots  used  at  State  elections.  This  valuable 
innovation  is  said  to  have  given  very  satisfactory  results  since 
its  introduction  in  the  State  in  1892.^ 

§  T26.  In  Massachusetts  a  special  ballot  for  the  use  of 
women  qualified  to  vote  for  school  committee  is  printed  on 
tinted  paper,  different,  however,  from  that  used  for  specimen 
ballots.-  In  North  Dakota,  ballots  cast  by  women  on  propo- 
sitions pertaining  to  school  matters  must  be  deposited  in  a 
separate  ballot-box,'  and  in  Minnesota  a  separate  ballot-box 
is  likewise  provided  for  ballots  cast  by  women,* 

§  727.  Among  the  general  provisions  of  the  statute  for 
the  prevention  of  fraud  in  elections,  and  not  already  referred 
to,  may  be  mentioned  the  furnishing  of  ballot-boxes  by  the 
State  or  municipality,  the  requirements  for  the  surrender 
and  cancellation  of  unused  ballots,  provisions  forbidding  the 
taking  of  official  ballots  from  the  voting  place,  closing  saloons 
on  election  day  and  prohibiting  electioneering  in  the  vicinity 
of  the  polls,'  supplemented  by  provisions  for  the  criminal 
prosecution  of  persons  guilty  of  wilful  violations  of  the  law. 
The  division  of  cities  into  small  voting  precincts,  though  not 
strictly  a  feature  of  this  system,  is  a  reform  which  has  been 
embodied  in  the  law  as  introduced  in  some  States,  and  is 
now  almost  universally  applied  in  conducting  municipal  elec- 
tions in  the  United  States.^ 

1  See  Article  of  John  E.  Milbolland,  "  The  Danger  Point  in  American 
Politics,"  North  American  Review  for  January,  1897,  p.  92. 

2  Acts  of  1893,  ch.  417,  sec.  132. 

»Sec.  532,  Rev.  Code  of  North  Dakota,  1895. 

*Sec.  77,  ch.  4,  Laws  of  1893. 

*  The  provision  of  the  law  forbidding  electioneering  in  the  vicinity  of 
the  polls  is  constitutional  State  v.  Black,  54  N.  J.  Law,  446;  24  AtL  Rep., 
489. 

6  This  chapter  has  been  confined  to  a  consideration  of  American  de- 


CHAP.  XXII.]  AUSTRALIAN   BALLOT    SYSTEM.  625 

§  728.  Probably  the  chief  objection  to  the  Australian 
ballot  law  is  that  the  counting  of  the  oflScial  ballots  is  of 
necessity  a  tedious  and  difficult  process,  and  that  informa- 
tion with  reference  to  the  result  of  an  election  is,  on  this 
account,  unduly  delayed.  An  interesting  innovation  has 
been  introduced  in  Michigan  and  'New  York  which  promises 
to  obviate  this  difficulty  and  to  revolutionize  the  manner  of 
conducting  elections  in  this  country.  In  1893  the  Legisla- 
ture of  Michigan  provided  by  statute  that  at  all  township. 
State  and  village  elections  held  in  that  State  the  voting 
might  be  done  with  the  "Khines  Yote  Eecorder."^  By  an 
act  of  the  Legislature  of  Kew  York,  approved  May  24, 1894,^ 
it  is  provided  that  any  city  or  town  in  the  State  outside  of 
New  York  and  Kings  counties  may  adopt  the  "Myers 
Automatic  Yoting  Machine  "  for  use  at  all  elections.  By  an 
act  approved  April  21,  1896,'  a  similar  provision  was  made 
permitting  the  use  of  the  "  Davis  Yoting  Machine."  The 
use  of  other  machines  is  also  permitted  in  incorporated  towns 
and  villages.*  In  1895  the  New  York  statute  providing  for 
the  use  of  the  Myers  machine,  and  prescribing  the  manner 
of  conducting  elections  with  it,  was  adopted  in  its  entiret}'' 
in  Michigan,*  the  act  applying,  however,  to  every  city,  town- 
ship and  village  in  the  State.  At  the  same  session  of  the 
Michigan  Legislature  the  use  of  the  "Abbot  Yoting  Ma- 
chine "  was  also  legalized  in  cities,  townships  and  villages.* 

§  729.  While  the  construction  of  and  manner  of  oper- 
ating these  devices  differ  to  some  extent,  the  design  in  each 

cisions  affecting  the  Australian  system  as  introduced  in  this  country, 
and  no  attempt  has  been  made  to  review  the  decisions  of  the  courts  of 
other  countries  where  the  system  has  been  adopted.  A  compilation  of 
the  decisions  of  foreign  courts  may  be  found  in  Wigmore's  Australian 
Ballot  System,  8d  edition. 

1  Act  No.  98,  Public  Acts  of  1893,  p.  122. 

2  Laws  1894,  ch.  764 
8Lawsl896,  ch.  339. 
*  Laws  1894,  ch.  765. 

6  Act  No.  85,  Public  Acts  of  1895,  p.  185. 
•Act  No.  76,  Public  Acts  of  1895,  p.  174 


526  ELECTIONS.  [chap.  txtt. 

case  is  to  secure  absolute  secrecy  in  voting,  and  speed  and 
accuracy  in  counting  the  ballots. 

The  Myers,  Abbot  and  Davis  machines  are  operated  sub- 
stantially alike.  There  is  a  compartment  to  be  occupied  by 
the  voter  in  voting,  and  a  closed  counter  compartment  con- 
taining the  automatic  mechanical  counters.  In  the  voters' 
compartment  is  arranged  a  frame  in  which  appear  the 
names  of  all  candidates  for  office  arranged  in  roAvs  similar 
to  the  arrangement  of  official  ballots  under  the  Australian 
system,  the  party  designations  being  at  the  head  of  the 
columns  and  the  names  of  the  offices  to  be  filled  appearing 
on  the  left.  Propositions  to  be  voted  upon  appear  as  upon 
official  ballots.  The  different  party  tickets  are  distinguished 
from  each  other  by  the  use  of  distinctive  colors.  "Where  a 
candidate  is  nominated  by  two  or  more  parties  for  the  same 
office,  his  name  is  printed  on  the  ballot  of  the  party  first 
nominating  him,  unless  he  designates  a  preference  to  appear 
otherwise.  A  key-board  is  arranged  in  connection  with  the 
ballot-frame,  and  the  voter  is  enabled  to  register  his  choice 
of  a  straight  ticket  or  of  individual  candidates  by  pressing 
a  push-knob  or  similar  device.^  The  voters'  compartment 
is  fitted  with  one  door  for  entrance  and  another  for  exit. 
The  doors  of  the  compartment  are  closed  while  the  elector 
is  voting  and  he  is  only  permitted  to  remain  in  the  compart- 
ment one  minute.  Provision  is  made  whereby  assistance 
may  be  rendered  disabled  voters.  The  machines  are  so 
constructed  that  repeating  is  impossible.  The  total  number 
of  votes  cast  is  registered  publicly  upon  a  dial  at  the  front 

iThe  Abbot  machine  is  of  the  type  which  keeps  the  record  by 
means  of  registering  wheels.  The  working  parts  of  the  apparatus  are 
a  set  of  slides,  each  carrying  the  name  of  a  candidate  for  office.  The 
machine  is  so  constructed  that  the  slides  containing  the  names  of  the 
candidates  may  be  moved  singly  or  in  unison,  at  the  will  of  the  voter, 
so  that  either  a  straight  ticket  or  a  split  or  scratched  ticket  may  be 
voted  at  one  motion.  The  operating  bar  carries  the  unit  wheel  of  the 
candidate  voted  for  forward  one  number  each  time  a  vote  is  cast  for 
such  candidate,  thus  adding  each  vote  to  those  already  received  by  the 
candidate. 


CHAP.  XXII.]  AUSTRALIAN   BALLOT   SYSTEM.  527 

of  the  machine.  The  result  of  the  vote  for  each  candidate, 
and  upon  eaph  proposition,  is  indicated  upon  dials  in  the 
counter  compartment,  but  during  the  process  of  election 
this  compartment  is  kept  closed  and  locked.  As  soon  as 
the  polls  are  closed  the  entrance  door  of  the  voter's  com- 
partment is  locked.  The  inspectors,  then,  in  the  presence 
of  the  watchers  and  challengers,  unlock  and  open  the  doors 
of  the  counter  compartment.  The  result  of  the  vote  is  then 
read  from  the  dials  and  announced,  and  each  and  all  are 
required  to  observe  and  record  the  total  number  of  votes 
registered  for  each  candidate  and  upon  each  question  or 
proposition  submitted;  and  such  ascertainment  of  the  re- 
sults is  deemed  to  be  the  canvassing  of  the  votes  cast  at  the 
election.^ 

The  Rhines  machine  differs  from  the  others  in  that  the 
voter  is  required  to  use  a  different  machine  in  voting  for 
candidates  for  each  of  the  different  offices  to  be  filled,  and 
the  vote  is  recorded  upon  a  ribbon  contained  in  each  ma- 
chine, which  ribbon  is  preserved  in  the  same  way  that  bal- 
lots were  preserved  before  the  adoption  of  the  law.' 

litis  stated  by  reliable  authority  that  at  the  last  general  election 
the  result  of  the  election  at  Hudson,  Michigan,  where  a  voting  ma- 
chine was  used,  was  announced  by  the  inspectors  one  minute  and  forty- 
four  seconds  after  the  closing  of  the  polls. 

2  The  mechanism  of  the  Rhines  machine  is  thus  described  in  the  New 
York  "Nation"  of  April  18,  1889: 

"  The  ordinary  paging  machine  of  the  printer  suggested  the  main 
idea  to  Mr.  Rhines.  The  principle  involved  is  that  of  the  counting  ma- 
chine, as  in  the  odometer.  The  machine  itself  is  an  oblong  brass  box  about 
ten  by  fourteen  inches,  six  inches  deep,  with  a  hinged  cover.  This  box  is 
placed  on  a  small  stand  in  the  rear  of  the  polling-room,  and  in  plain 
sight  of  the  judges  and  clerks  of  election.  The  voter  is  identified  by 
the  judges,  and  passes  into  the  stall  where  the  machine  is.  On  raising 
the  lid  of  the  box,  a  screen  is  drawn  up  before  the  stall,  shutting  both 
voter  and  machine  from  view.  The  lid  when  raised  discloses  a  number 
of  keys  not  unlike  organ  stops.  There  are  as  many  vertical  rows  of 
keys  as  the  greatest  number  of  candidates  for  any  one  office,  and  as 
many  keys  in  a  horizontal  row  as  there  are  offices  to  be  filled.  The 
printed  name  of  each  candidate  and  the  office  for  which  he  is  nomi- 
nated are  placed  in  the  top  of  or  above  these  keys. 


628  ELECTIONS.  [chap.  XXII. 

"  The  elector  in  voting  presses  down  the  key  bearing  the  name  of  the 
candidate  he  wishes  to  support.  The  key  remains  down.  In  being  de- 
pressed it  has  locked  all  the  keys  of  other  candidates  to  the  same  office, 
thus  making  it  impossible  for  an  elector  to  vote  for  more  than  one  can- 
didate for  the  same  office;  at  the  same  time  this  key  has  imprinted 
indelibly,  on  a  slip  of  paper  beneath  in  the  box,  a  number  which  shows 
the  total  vote  cast  for  that  candidate  up  to  that  time.  The  elector 
votes  for  each  of  the  other  offices  in  turn  in  the  same  way,  shuts  down 
the  lid  of  the  box,  dropping  the  screen  in  front,  exposing  machine  and 
voter  to  the  view  of  the  judges.  The  box-lid,  on  being  closed,  liberates 
all  the  keys,  and  the  machine  is  ready  for  the  next  voter. 

"  When  the  last  elector  has  voted,  the  count  is  thus  already  made  and 
recorded  for  each  candidate,  while  the  turnstile  at  the  judges'  desk  has 
recorded  the  total  number  of  voters  admitted.  There  is  no  opportunity 
for  repeating  by  closing  and  raising  the  lid,  and  thus  setting  free  the 
keys;  for  each  raising  of  the  lid  not  only  is  visible  to  the  officers  but 
also  rings  an  alarm  bell." 


APPENDIX. 


LAWS  OF  THE  UNITED  STATES 

IN  RELATION  TO 

THE  ELECTIVE  FRANCHISE. 

ELECTION  OF  SENATORS. 

ELECTION  OF  REPRESENTATIVES 
ORGANIZATION  OF  MEETINGS  OF  CONGRESS. 
CONTESTED  ELECTIONS. 

PRESIDENTIAL  ELECTIONS. 

AlfiO 

A    DISCUSSION   OF   THE    QUESTION    OF   RESIDENCE    AS   A 
QUALIFICATION    FOR    VOTING,    BEING    PART    OF 
REPORT    OF    THE  COMMITTEE    OF   ELEC- 
TIONS IN  THE  HOUSE  OF  REPRE- 
SENTATIVES, U.  S.,  IN  CASE 
OF  CESSNA  V.  MYERa 


THE  ELECTIVE  FRANCHISE.' 


(FROM  THE   REVISED   STATUTES   OF  THE  UNITED  STATES, 

TITLE  XXVI.) 

Sec  2002.    Bringing  armed  troops  to  places  of  election.    [Repealed.] 
2003.    Interference  with  freedom  of  elections  by  oflBicers  of  army 

or  navy. 
2004    Race,  color,  or  previous  condition,  not  to  affect  the  right  to 
vote. 

2005.  Nor  the  performance  of  any  prerequisite.     [Repealed.] 

2006.  Penalty  for  refusing  to  give  full  effect  to  the  preceding  seo 

tion.    [Repealed.] 

2007.  What  shall  entitle  a  person  to  vote.    [Repealed.] 

2008.  Penalty  for  wrongfully  refusing  to  receive  a  vote.  [Repealed.] 

2009.  For  unlawfully  hindering  a  person  from  voting.     [Repealed.] 

2010.  Remedy  for  deprivation  of  office.    [Repealed.] 

2011.  In  cities  or  towns  of  over  20,000  inhabitants,  upon  written 

application  of  two  citizens,  the  circuit  judge  to  open 
court.     [Repealed.] 

2012.  Supervisors  of  election.    [Repealed.] 

2013.  Court  to  be  kept  open.    [Repealed.] 

2014.  District  judge  may  perform  duties  of  circuit  judge.    [Re- 

pealed.] 

2015.  Construction  of  preceding  section.    [Repealed.] 

2016.  Duties  of  supervisors  of  elections.    [Repealed.] 

2017.  Attendance  at  elections.     [Repealed.] 

2018.  To  personally  scrutinize  and  count  each  ballot.    [Repealed.] 

2019.  Their  positions.    [Repealed.] 

2020.  When  molested.    [Repealed.] 

2021.  Special  deputies.    [Repealed.] 

2022.  Duties  of  marshals.    [Repealed.] 

2023.  Persons  arrested  to  be  taken  forthwith  before  a  judge.    [Re- 

pealed.] 
2024    Assistance  of  bystanders.    [Repealed.] 
2035.    Chief  supervisors  of  elections.    [Repealed.] 

2026.  Their  duties.     [Repealed.] 

2027.  Marshals  to  forward  complaint  to  chief  supervisors.     [Re- 

pealed.] 
.  2028.    Supervisors  and  deputy  marshals  to  be  qualified  voters,  et& 
[Repealed.] 

2029.  Certain  supervisors  not  to  make  arrests,  etc    [Repealed.] 

2030.  No  more  marshals  or  deputy  marshals  to  be  appointed  than 

now  authorized.     [Repealed.] 

2031.  Pay  of  supervisors,  etc.     [Repealed.] 

Act  of  February  8,  1894  repealing  certain  sections. 

•The  repealed  sections,  together  with  the  repealing  act,  are  Inserted  here  for  oon. 
Tenience  of  reference  in  connectioa  with  decisions  thereon  referred  to  in  the  text. 


532  AJ'fJiJSUiX. ELECTIVE    x.iwii!i011iajfc 

Skc.  2C02.  No  military  or  naval  officer,  or  other  person  engaged  in 
the  civil,  military,  or  naval  service  of  the  United  States,  shall  order, 
bring,  keep,  or  have  under  his  authority  or  control,  any  troops  or  armed 
men  at  the  place  where  any  general  or  special  election  is  held  in  any 
State,  imless  it  be  necessary  to  repel  the  armed  enemies  of  the  United 
States,  or  to  keep  the  peace  at  the  polls.    rRepealed.l 

Sec.  2003.  No  officer  of  the  Army  or  Navy  of  the  United  States  shall 
prescribe  or  fix,  or  attempt  to  prescribe  or  fix,  by  proclamation,  order,  or 
otherwise,  the  qualifications  of  voters  in  any  State,  or  in  any  manner  in- 
terfere with  the  freedom  of  any  election  in  any  State,  or  with  the  exer- 
cise of  the  free  right  of  suffrage  in  any  State. 

Sec.  2004.  All  citizens  of  the  United  States  who  are  otherwise  quali- 
fied by  law  to  vote  at  any  election  by  the  people  in  any  State,  Territory, 
district,  county,  city,  parish,  township,  school  district,  municipality,  or 
other  territorial  subdivision,  shall  be  entitled  and  allowed  to  vote  at  all 
such  elections,  without  distinction  of  race,  color,  or  previous  condition 
of  servitude ;  any  constitution,  law,  custom,  usage,  or  regulation  of  any 
State  or  territory,  or  by  or  under  its  authority,  to  the  contrary  notwith- 
standing. 

Sec.  2005.  When  under  the  authority  of  the  constitution  or  laws  of 
any  State,  or  the  laws  of  any  Territory,  any  act  is  required  to  be  done  as 
a  prerequisite  or  qualification  for  voting,  and  by  such  constitution  or  laws 
persons  or  officers  are  charged  with  the  duty  of  furnishing  to  citizens  an 
opportunity  to  perform  such  prerequisite,  or  to  become  qualified  to  vote, 
every  such  person  and  officer  shall  give  to  all  citizens  of  the  United 
States  the  same  and  equal  opportunity  to  perform  such  prerequisite,  and 
to  become  qualified  to  vote.    [Repealed.] 

Sec.  2006.  Every  person  or  officer  charged  with  the  duty  specified  in 
the  preceding  section,  who  refuses  or  knowingly  omits  to  give  full  eflFect 
to  that  section,  shall  forfeit  the  sum  of  five  hundred  dollars  to  the  party 
aggrieved  by  such  refusal  or  omission,  to  be  recovered  by  an  action  on 
the  case,  with  costs,  and  such  allowance  for  counsel  fees  as  the  court  may 
deem  just.    [Repealed.] 

Sec.  2007.  Whenevev  under  the  authority  of  the  constitution  or  laws 
of  any  State,  or  the  laws  of  any  Territory,  any  act  is  required  to  be  done 
by  a  citizen  as  a  prerequisite  to  qualify  or  entitle  him  to  vote,  the  ofier  of 
such  citizen  to  perform  the  act  required  to  be  done  shall,  if  it  fail  to  be 
carried  into  execution  by  reason  of  the  wrongful  act  or  omission  of  the 
person  or  officer  charged  with  the  duty  of  receiving  or  permitting  such 
performance  or  ofier  to  perform,  or  acting  thereon,  be  deemed  and  held 
as  a  performance  in  law  of  such  act ;  and  the  person  so  off"ering  and  fail- 
ing to  vote,  and  being  otherwise  qualified,  shall  be  entitled  to  vote  in  the 
same  manner  and  to  the  same  extent  as  if  he  had  in  fact  performed  such 
act     [Repealed.] 

Sec.  2008.  Every  judge,  inspector,  or  other  officer  of  election  whose 
duty  it  is  to  receive,  count,  certify,  register,  report,  or  give  effect  to  the 
vote  of  such  citizen,  who  wrongfully  refuses  or  omits  to  receive,  count,. 


APPENDIX. ELECTIVE    FEANOHISB.  533 

certify,  register,  report,  or  give  effect  to  the  vote  of  such  citizen  upon  the 
presentation  by  him  of  his  affidavit,  stating  such  offer  and  the  time  and 
place  thereof,  and  the  name  of  the  officer  or  person  whose  duty  it  was  to 
act  thereon,  and  that  he  was  wrongfully  prevented  by  such  person  or  offi- 
cer from  performing  such  act,  shall  forfeit  the  sum  of  five  hundred  dol- 
lars to  the  party  aggrieved  by  such  refusal  or  omission,  to  be  recovered 
by  an  action  on  the  case,  with  costs,  and  such  allowance  for  counsel  fees 
as  the  court  may  deem  just.     [Repealed.] 

Sbc.  2009.  Every  officer  or  other  person,  having  powers  or  duties  of 
an  official  character  to  discharge  under  any  of  the  provisions  of  this 
Title,  who  by  threats,  or  any  unlawful  means,  hinders,  delays,  prevents, 
or  obstructs,  or  combines  and  confederates  with  others  to  hinder,  delay, 
prevent,  or  obstruct  any  citizen  from  doing  any  act  required  to  be  done 
to  qualify  him  to  vote,  or  from  voting  at  any  election  in  any  State,  Terri- 
tory, district,  county,  city,  parish,  township,  school  district,  municipality, 
or  other  territorial  subdivision,  shall  forfeit  the  sum  of  five  hundred  dol- 
lars to  the  person  aggrieved  thereby,  to  be  recovered  by  an  action  on  the 
case,  with  costs,  and  such  allowance  for  counsel  fees  as  the  court  may 
deem  just.    [Repealed.] 

Sec.  2010.  Whenever  any  person  is  defeated  or  deprived  of  his  elec- 
tion to  any  office,  except  elector  of  President  or  Vice-President,  Repre- 
sentative or  Delegate  in  Congress,  or  a  member  of  a  State  legislature,  by 
reason  of  the  denial  to  any  citizen  who  may  offer  to  vote,  of  the  right  to 
vote,  ou  account  of  race,  color,  or  previous  condition  of  servitude,  his 
right  to  hold  and  enjoy  such  office,  and  the  emoluments  thereof,  shall  not 
be  impaired  by  such  denial;  and  the  person  so  defeated  or  deprived  may 
bring  any  appropriate  suit  or  proceeding  to  recover  possession  of  such 
office,  and  in  cases  where  it  appears  that  the  sole  question  touching  the 
title  to  such  office  arises  out  of  the  denial  of  the  right  to  vote  to  citizens 
who  so  offered  to  vote,  on  account  of  race,  color,  or  previous  condition  of 
servitude,  such  suit  or  proceeding  may  be  instituted  in  the  circuit  or  dis- 
trict court  of  the  United  States  of  the  circuit  or  district  in  which  such  per- 
son resides.  And  the  circuit  or  district  court  shall  have,  concurrently 
with  the  State  courts,  jurisdiction  thereof,  so  far  as  to  determine  the  rights 
of  the  parties  to  such  office  by  reason  of  the  denial  of  the  right  guaran- 
teed by  the  fifteenth  article  of  amendment  to  the  Constitution  of  the 
United  States,  and  secured  herein.    [Repealed.] 

Sec.  2011.  Whenever,  in  any  city  or  town,  having  upward  of  twenty 
thousand  inhabitants,  there  are  two  citizens  thereof,  or  whenever,  in  any 
county  or  parish,  in  any  congressional  district,  there  are  ten  citizens  there- 
of, of  good  standing,  who,  prior  to  any  registration  of  voters  for  an  elec- 
tion for  Representative  or  Delegate  in  the  Congress  of  the  United  States, 
or  prior  to  any  election  at  which  a  Representative  or  Delegate  in  Con- 
gress is  to  be  voted  for,  may  make  known,  in  writing,  to  the  judge  of  the 
circuit  court  of  the  United  States,  tor  the  circuit  wherein  such  city  or 
town,  county  or  parish,  is  situated,  their  desire  to  Lave  such  registration, 
or  such  election,  or  both,  guarded  and  scrutinized,  the  judge,  within  not 


534:  APPENDIX. ELECTIVE   FEANOHISB. 

less  than  ten  days  prior  to  the  registration,  if  one  there  be,  or,  if  no  reg» 
istration  be  required,  within  not  less  than  ten  days  prior  to  the  election, 
shall  open  the  circuit  court  at  the  most  convenient  point  in  the  circuit. 
[Repealed.] 

Sec.  2012.  The  court,  when  so  opened  by  the  judge,  shall  proceed  to 
appoint  and  commission,  from  day  to  day,  and  from  time  to  time,  and 
under  the  hand  of  the  judge,  and  under  the  seal  of  the  court,  for  each 
election  district  or  voting  precinct  in  such  city  or  town,  or  for  such  elec. 
tion  district  or  voting  precinct  in  the  congressional  district,  as  may  have 
applied  in  the  manner  hereinbefore  prescribed,  and  to  revoke,  change,  or 
renew  such  appointment  from  time  to  time,  two  citizens,  residents  of  the 
city  or  town,  or  of  the  election  district  or  voting  precinct  in  the  county  or 
parish,  who  shall  be  of  different  political  parties,  and  able  to  read  and 
write  the  English  language,  and  who  shall  be  known  and  designated  as 
supervisors  of  election.    [Repealed.] 

Sec.  2013.  The  circuit  court,  when  opened  by  the  judge  aa  required 
in  the  two  preceding  sections,  shall  therefrom  and  thereafter,  and  up  to 
and  including  the  day  following  the  day  of  election,  be  always  open  for 
the  transaction  of  business  under  this  Title,  and  the  powers  and  jurisdic- 
tion hereby  granted  and  conferred  shall  be  exercised  as  well  in  vacation 
as  in  term  time;  and  a  judge  sitting  at  chambers  shall  have  the  same 
powers  and  jurisdiction,  including  the  power  of  keeping  order  and  of 
punishing  any  contempt  of  his  authority,  as  when  sitting  in  court. 
[Repealed.] 

Sec.  2014.  Whenever,  from  any  cause,  the  judge  of  the  circuit  court 
in  any  judicial  circuit  is  unable  to  perform  and  discharge  the  duties 
herein  imposed,  he  is  required  to  select  and  assign  to  the  performance 
thereof,  in  his  place,  such  one  of  the  judges  of  the  district  courts  within 
his  circuit  as  he  may  deem  best;  and  upon  such  selection  and  assignment 
being  made,  the  district  judge  so  designated  shall  perform  and  discharge, 
in  the  place  of  the  circuit  judge,  all  the  duties,  powers  and  obligations 
imposed  and  conferred  upon  the  circuit  judge,  by  the  provisions  hereof. 
[Repealed.] 

Sec.  2015.  llie  preceding  section  shall  be  construed  to  authorize  each 
of  the  judges  of  the  circuit  courts  of  the  United  States  to  designate  one 
or  more  of  the  judges  of  the  district  courts  within  his  circuit  to  discharge 
the  duties  arising  under  this  Title.    [Repealed.] 

Sec.  2016.  The  supervisors  of  election,  bo  appointed,  are  authorized 
and  required  to  attend  at  all  times  and  places  fixed  for  the  registration  of 
voters,  who,  being  registered,  would  be  entitled  to  vote  for  a  Representa- 
tive or  Delegate  in  Congress,  and  to  challenge  any  person  offering  to 
register ;  to  attend  at  all  times  and  places  when  the  names  of  registered 
voters  may  be  marked  for  challenge,  and  to  cause  such  names  registered 
as  they  may  deem  proper  to  be  so  marked ;  to  make,  when  required,  the 
lists,  or  either  of  them,  provided  for  in  section  two  thousand  and  twenty- 
giz,  and  verify  the  same ;  and  upon  any  occasion,  and  at  any  time  when 
in  attendance  upon  the  duty  herein  prescribed,  to  personally  inspect  and 
scrutinize  such  registry,  and  for  purposes  of  identification  to  affix  their 


APPENDIX. —  ELECTIVE   FEANCHISE.  535 

signature  to  each  page  of  the  original  list,  and  of  each  copy  of  any  such 
list  of  registered  voters,  at  such  times,  upon  each  day  when  any  name 
may  be  received,  entered,  or  registered,  and  in  such  manner  as  will.  In 
their  judgment,  detect  and  expose  the  improper  or  wrongful  removal 
therefrom,  or  addition  thereto,  of  any  name.     [Repealed.] 

Sec.  2017.  The  supervisors  of  election  are  authorized  and  required  to 
attend  at  all  times  and  places  for  holding  elections  of  Representatives  or 
Delegates  in  Congress,  and  for  counting  the  votes  cast  at  such  elections ; 
to  challenge  any  vote  offered  by  any  person  whose  legal  qualifications 
the  supervisors,  or  either  of  them,  may  doubt;  to  be  and  remain  where 
Mie  ballot-boxes  are  kept  at  all  times  after  the  polls  are  open  until  every 
vote  cast  at  such  time  and  place  has  been  counted,  the  canvass  of  all  votes 
polled  wholly  completed,  and  the  proper  and  requisite  certificates  or  re- 
turns made,  whether  the  certificates  or  returns  be  required  under  any 
law  of  the  United  States,  or  any  State,  territorial,  or  municipal  law,  and 
to  personally  inspect  and  scrutinize,  from  time  to  time,  and  at  all  times, 
on  the  day  of  election,  the  manner  in  which  the  voting  is  done,  and  the 
way  and  method  in  which  the  poll-books,  registry-lists,  and  tallies  or 
check-books,  whether  the  same  are  required  by  any  law  of  the  United 
States,  or  any  State,  territorial,  or  municipal  law,  are  kept,    [Repealed.] 

Sec.  2018.  To  the  end  that  each  candidate  for  the  office  of  Represen- 
tative or  Delegate  in  Congress  may  obtain  the  benefit  of  every  vote  for 
him  cast,  the  supervisors  of  election  are,  and  each  of  them  is,  required  to 
personally  scrutinize,  count,  and  canvass  each  ballot  in  their  election  dis- 
trict or  voting  precinct  cast,  whatever  may  be  the  indorsement  on  the  bal- 
lot, or  in  whatever  box  it  may  have  been  placed  or  be  found ;  to  make  and 
forward  to  the  officer  who,  in  accordance  with  the  provisions  of  section 
two  thousand  and  twenty -five,  has  been  designated  as  the  chief  supervisor 
of  the  judicial  district  in  which  the  city  or  town,  wherein  they  may  serve, 
acts,  such  certificates  and  returns  of  all  such  ballots  as  such  officer  may 
direct  and  require,  and  to  attach  to  the  registry-list,  and  any  and  all  copies 
thereof,  and  to  any  certificate,  statement,  or  return,  whether  the  same,  or 
any  part  or  portion  thereof,  be  required  by  any  law  of  the  United  States, 
or  of  any  State,  territorial,  or  municipal  law,  any  statement  touching  the 
truth  or  accuracy  of  the  registry,  or  the  truth  or  fairness  of  the  election 
and  canvass,  which  the  supervisors  of  the  election,  or  either  of  them,  may 
desire  to  make  or  attach,  or  which  should  properly  and  honestly  be  made 
or  attached,  in  order  that  the  facts  may  become  known.    [Repealed.] 

Sec.  2019.  The  better  to  enable  the  supervisors  of  elections  to  dis- 
charge their  duties,  they  are  authorized  and  directed,  in  their  respective 
election  districts  or  voting  precincts,  on  the  day  of  registration,  on  the 
day  when  registered  voters  may  be  marked  to  be  challenged,  and  on  the 
day  of  election,  to  take,  occupy,  and  remain  in  such  position,  from  time 
to  time,  whether  before  or  behind  the  ballot-boxes,  as  will,  in  their  judg- 
ment, best  enable  them  to  see  each  person  offering  himself  for  registra- 
tion  or  offering  to  vote,  and  as  will  best  conduce  to  their  scrutinizing  the 
manner  in  which  the  registration  or  voting  is  being  conducted ;  and  at 
the  closing  of  the  polls  for  the  reception  of  votes,  they  are  required  to 
place  themselves  in  such  position,  in  relation  to  the  ballot-boxes,  for  the 


536  APPENDIX. —  ELECTIVE  FEANCHISB. 

puri)ose  of  engaging  in  the  work  of  canvassing  the  ballots,  as  will  enable 
them  to  fully  perform  the  duties  in  respect  to  such  canvass  provided 
herein,  and  shall  there  remain  until  every  duty  in  respect  to  such  can- 
vass, certificates,  returns,  and  statements  has  been  wholly  completed. 
[Repealed.] 

Sec.  2020.  When  in  any  election  district  or  voting  precinct  in  any  city 
or  town,  for  which  there  have  been  appointed  supervisors  of  election  for 
any  election  at  which  a  Representative  or  Delegate  in  Congress  is  voted 
for,  the  supervisors  of  election  are  not  allowed  to  exercise  and  discharge, 
fully  and  freely,  and  without  bribery,  solicitation,  interference,  hinder- 
ance,  molestation,  violence,  or  threats  thereof,  on  the  part  of  any  person, 
all  the  duties,  obligations,  and  powers  conferred  upon  them  by  law,  the 
supervisors  of  election  shall  make  prompt  report,  under  oath,  within  ten 
days  after  the  day  of  election  to  the  officer  who,  in  accordance  with  the 
provisions  of  section  two  thousand  and  twenty-five,  has  been  designated 
as  the  chief  supervisor  of  the  judicial  district  in  which  the  city  or  town 
wherein  they  served,  acts,  of  the  manner  and  means  by  which  they  were 
not  80  allowed  to  fully  and  freely  exercise  and  discharge  the  duties  and 
obligations  required  and  imposed  herein.  And  upon  receiving  any  such 
report,  the  chief  supervisor,  acting  both  in  such  capacity  and  officially  as 
a  commissioner  of  the  circuit  court,  shall  forthwith  examine  into  all  the 
facts;  and  he  shall  have  power  to  subpoena  and  compel  the  attendance 
before  him  of  any  witness,  and  to  administer  oaths  and  take  testimony  in 
respect  to  the  charges  made;  and,  prior  to  the  assembling  of  the  Congress 
for  which  any  such  Representative  or  Delegate  was  voted  for,  he  shall  file 
with  the  Clerk  of  the  House  of  Representatives,  all  the  evidence  by  him 
taken,  all  information  by  him  obtained,  and  all  reports  to  him  made. 
[Repealed.] 

Sec.  2021.  Whenever  an  election  at  which  Representatives  or  Dele- 
gates in  Congress  are  to  be  chosen  is  held  in  any  city  or  town  of  twenty 
thousand  inhabitants  or  upward,  the  marshal  for  the  district  in  which  the 
city  or  town  is  situated  shall,  on  the  application  in  writing  of  at  least  two 
citizens  residing  in  such  city  or  town,  appoint  special  deputy  marshals, 
whose  duty  it  shall  be,  when  required  thereto,  to  aid  and  assist  the  super- 
visors of  election  in  the  verification  of  any  list  of  persons  who  may  have 
registered  or  voted ;  to  attend  in  each  election  district  or  voting  precinct 
at  the  time  and  places  fixed  for  the  registration  of  voters,  and  at  all  times 
and  places  when  and  where  the  registration  may  by  law  be  scrutinized, 
and  the  names  of  registered  voters  be  marked  for  challenge ;  and  also  to 
attend,  at  all  times  for  holding  elections,  the  polls  in  such  district  or  pre- 
cinct    [Repealed.] 

Sec.  2022.  The  marshal  and  his  general  deputies,  and  such  special 
deputies,  shall  keep  the  peace,  and  support  and  protect  the  supervisors 
of  election  in  the  discharge  of  their  duties,  preserve  order  at  such  places 
of  registration  and  at  such  polls,  prevent  fraudulent  registration  and 
fraudulent  voting  thereat,  or  fraudulent  conduct  on  the  part  of  any  officer 
of  election,  and  immediately,  either  at  the  place  of  registration  or  poll- 
ing place,  or  elsewhere,  and  either  before  or  after  registering  or  voting, 
to  arrest  and  take  into  custody,  with  or  without  process,  any  person  who 


APPENDIX. ELECTIVE   FRANCHISE.  537 

commits,  or  attempts  or  oflFers  to  commit,  any  of  the  acts  or  offenses  pro- 
hibited herein,  or  who  commits  any  offense  against  the  laws  of  the  United 
States ;  but  no  person  shall  be  arrested  without  process  for  any  offense 
not  committed  in  the  presence  of  the  marshal  or  his  general  or  special 
deputies,  or  either  of  them,  or  of  the  supervisors  of  election,  or  either  of 
them,  and,  for  the  purpose  of  arrest,  or  the  preservation  of  the  peace,  the 
supervisors  of  election  shall,  in  the  absence  of  the  marshal's  deputies,  or 
if  required  to  assist  such  deputies,  have  the  same  duties  and  powers  as 
deputy  marshals ;  nor  shall  any  person,  on  the  day  of  such  election,  be 
arrested  without  process  for  any  offense  committed  on  the  day  of  regis- 
tration.   [Eepealed.] 

Skc.  2023.  Whenever  any  arrest  is  made  under  'any  provision  of  this 
title,  the  person  so  arrested  shall  forthwith  be  brought  before  a  commis- 
sioner, judge,  or  court  of  the  United  States  for  examination  of  the  offen- 
ses alleged  against  him;  and  such  commissioner,  judge,  or  court  shall 
proceed  in  respect  thereto,  as  authorized  by  law  in  case  of  crimes  against 
the  United  States.    [Repealed.] 

Sec.  2024.  The  marshal  or  his  general  deputies,  or  such  special  deptu 
ties  as  are  thereto  specially  empowered  by  him,  in  writing,  and  under 
his  hand  and  seal,  whenever  he  or  either  or  any  of  them,  is  forcibly  re- 
sisted  in  executing  their  duties  under  this  Title,  orshall,  by  violence, 
threats,  or  menaces,  be  prevented  from  executing  such  duties,  or  from  ar- 
resting any  person  who  has  committed  any  offense  for  which  the  marshal 
or  his  general  or  his  special  deputies  are  authorized  to  make  such  arrest, 
are,  and  each  of  them  is,  empowered  to  summon  and  call  to  his  aid  the 
bystanders  or  posse  comitatus  of  his  district.    [Repealed.] 

Sec.  2025.  The  circuit  courts  of  the  United  States  for  each  judicial 
circuit  shall  name  and  appoint,  on  or  before  the  first  day  of  May,  in  the 
year  eighteen  hundred  and  seventy-one,  and  thereafter  as  vacancies  may 
from  any  cause  arise,  from  among  the  circuit  court  commissioners  for 
each  judicial  district  in  each  judicial  circuit,  one  of  such  officers,  who 
shall  be  known  for  the  duties  required  of  him  under  this  Title,  as  the 
chief  supervisor  of  elections  of  the  judicial  district  for  which  he  is 
a  commissioner,  and  shall,  so  long  as  faithful  and  capable,  discharge  the 
duties  in  this  Title  imposed.    [Repealed.] 

Sec.  2026.  The  chief  supervisor  shall  prepare  and  furnish  all  neces- 
sary books,  forms,  blanks,  and  instructions  for  the  use  and  direction  of 
the  supervisors  of  election  in  the  several  cities  and  towns  in  their  respec- 
tive districts ;  he  shall  receive  the  applications  of  all  parties  for  appoint- 
ment to  such  positions ;  upon  the  opening,  as  contemplated  in  section 
two  thousand  and  twelve,  of  the  circuit  court  for  the  judical  circuit  in 
which  the  commissioners  so  designated  acts,  he  shall  present  such  appli- 
cations  to  the  judge  thereof,  and  furnish  information  to  him  in  respect  to 
the  appointment  by  the  court  of  such  supervisors  of  election ;  he  shall 
require  of  the  supervisors  of  election,  when  necessary,  lists  of  the  per- 
sons who  may  register  and  vote,  or  either,  in  their  respective  election  dis- 
tricts or  voting  precincts,  and  cause  the  names  of  those  upon  any  such  list 


538 


APPENDIX. ELECTIVE   FKANCHISB. 


whose  right  to  register  or  vote  is  honestly  doubted  to  be  rerifled  by 
proper  inquiry  and  examination  at  the  respective  places  by  them  assigned 
as  their  residences ;  and  he  shall  receive,  preserve  and  file  all  oaths  of 
office  of  supervisors  of  election,  and  of  all  special  deputy  marshals  ap- 
pointed under  the  provisions  of  this  title,  and  all  certificates,  returns,  re- 
ports, and  records  of  every  kind  and  nature  contemplated  or  made 
requisite  by  the  provisions  hereof,  save  where  otherwise  herein  spe 
cially  directed.    [Repealed.] 

Sec.  2027.  All  United  States  marshals  and  commissioners  who  in  any 
judicial  district  perform  any  duties  under  the  preceding  provisions  rela- 
ting to,  concerning,  or  affecting  the  election  of  Representatives  or  Dele- 
gates in  the  Congress  of  the  United  States,  from  time  to  time,  and,  with 
all  due  dilligence,  shall  forward  to  the  chief  supervisor  in  and  for  their 
judicial  district,  all  complaints,  examinations,  and  records  pertaining 
thereto,  and  all  oaths  of  office  by  them  administered  to  any  supervisor  of 
election  or  special  deputy  marshal,  in  order  that  the  same  may  be 
properly  preserved  and  filed.    [Repealed.] 

Sec.  2028.  No  person  shall  be  appointed  a  supervisor  of  election  or  a 
deputy  marshal,  under  the  preceding  provisions,  who  is  not,  at  the  time 
of  his  appointment,  a  qualified  voter  of  the  city,  town,  county,  parish, 
election  district,  or  voting  precinct  in  which  his  duties  are  to  be  per- 
formed.    [Repealed.] 

Sec.  2029.  The  supervisors  of  election  appointed  for  any  county  or 
parish,  in  any  congressional  district,  at  the  instance  of  ten  citizens,  as 
provided  in  section  two  thousand  and  eleven,  shall  have  no  authority  to 
make  arrests,  or  to  perform  other  duties  than  to  be  in  the  immediate  pres- 
ence of  the  officers  holding  the  election,  and  to  witness  all  their  proceed- 
ings, including  the  counting  of  the  votes  and  the  making  of  a  return 
thereof.     [Repealed.] 

Sec.  2030.  Nothing  in  this  Title  shall  be  construed  to  authorize  the 
appointment  of  any  marshals  or  deputy  marshals,  in  addition  to  those 
authorized  by  law,  prior  to  the  tenth  day  of  June,  eighteen  hundred  and 
seventy-two.     [Repealed.;] 

Sec.  2031.  There  shall  be  allowed  and  paid  to  the  chief  supervisor,  for 
his  services  as  such  officer,  the  following  compensation,  apart  from  and 
in  ezeessof  all  fees  allowed  by  law  for  the  performance  of  any  duty  as 
circuit  court  commissioner:  For  filing  and  caring  for  every  return,  re- 
port, record,  document  or  other  paper  required  to  be  filed  by  him  under 
any  of  the  preceding  provisions,  ten  cents ;  for  affixing  a  seal  to  any 
paper,  record,  report  or  instrument,  twenty  cents  j  for  entering  and  in- 
dexing the  records  of  his  office,  fifteen  cents  per  folio;  and  for  arranging 
and  transmitting  to  Congress,  as  provided  for  in  section  two  thousand  and 
twenty,  any  report,  statement,  record,  return,  or  examination,  for  each 
folio,  fifteen  cents ;  and  for  any  copy  thereof,  or  of  any  paper  on  file,  a 
like  sum.  And  there  shall  be  allowed  and  paid  to  each  supervisor  of 
election,  and  each  special  deputy  marshal  who  is  appointed  and  performs 
his  duty  under  the  preceding  provisions,  compensation  at  the  rate  of  five 
dollars  per  day  for  each  day  he  is  actually  on  duty,  not  exceeding  ten 


APPENDIX.— ELECTIVE  FEANOHISB.  639 

days;  but  no  compensation  shall  be  allowed,  in  any  case,  to  supervisors 
of  election,  except  to  those  appointed  in  cities  or  towns  of  twenty  thou- 
sand or  more  inhabitants.  And  the  fees  of  the  chief  supervisors  shall 
be  paid  at  the  Treasury  of  the  United  States,  such  accounts  to  be  made 
out,  verified,  examined,  and  certified  as  in  the  case  of  accounts  of  com- 
missioners, save  that  the  examination  or  certificate  required  may  be 
made  by  either  the  circuit  or  district  judge.    [Repealed.] 

ACT  OF  FEBRUAEY  8, 1894. 

Ak  Act  to  repeal  all  statutes  relating  to  supervisors  of  elections  and  special  deputy 
marshals,  and  for  other  purposes. 

Be  it  enacted,  etc.,  That  the  following  sections  and  parts  of  sections 
of  the  Revised  Statutes  of  the  United  States  be,  and  the  same  are  hereby 
repealed;  that  is  to  say  of  title  "Elective  Franchise,"  sections  twenty 
hundred  and  two,  twenty  hundred  and  five,  twenty  hundred  and  six, 
twenty  hundred  and  seven,  twenty  hundred  and  eight,  twenty  hundred 
and  nine,  twenty  hundred  and  ten,  twenty  hundred  and  eleven,  twenty 
hundred  and  twelve,  twenty  hundred  and  thirteen,  twenty  hundred 
and  fourteen,  twenty  hundred  and  fifteen,  twenty  hundred  and  sixteen, 
twenty  hundred  and  seventeen,  twenty  hundred  and  eighteen,  twenty 
hundred  and  nineteen,  twenty  hundred  and  twenty,  relating  to  the  apn 
pointment,  qualification,  power,  duties,  and  compensation  of  supervis- 
ors of  election; 

And  also  sections  twenty  hundred  and  twenty-one,  twenty  hundred 
and  twenty-two,  twenty  hundred  and  twenty-three,  twenty  hundred 
and  twenty -four,  twenty  hundred  and  twenty-five,  twenty  hundred  and 
twenty-six,  twenty  hundred  and  twenty-seven,  twenty  hundred  and 
twenty-eight,  twenty  hundred  and  twenty-nine,  twenty  hundred  and 
thirty,  twenty  hundred  and  thirty-one  of  same  title,  relating  to  the 
appointment,  qualification,  power,  duties  and  compensation  of  special 
deputies; 

And  also  of  title  "  Crimes,"  sections  fifty- five  hundred  and  six,  fifty- 
five  hundred  and  eleven,  fifty-five  hundred  and  twelve,  fifty-five  hun- 
dred and  thirteen,  fifty-five  hundred  and  fourteen,  fifty-five  hundred 
and  fifteen,  fifty-five  hundred  and  twenty,  fifty-five  hundred  and  twenty- 
one,  fifty-five  hundred  and  twenty-two,  fifty-five  hundred  and  twenty- 
three. 

But  the  repeal  of  the  sections  hereinbefore  mentioned  shall  not  oper- 
ate so  as  to  affect  any  prosecutions  now  pending,  if  any,  for  a  violation 
of  any  of  the  provisions  of  said  sections; 

And  also  part  of  section  six  hundred  and  forty-three,!  as  follows: 

"  Or  is  commenced  against  any  oflScer  of  the  United  States  or  other 

» The  section  here  referred  to  relates  to  the  removal  of  causes  from  State  to  Federal 
courts,  against  United  States  officers  acting  under  color  of  office. 


540  APPENDEC ELECTION   OF    SENAT0E8. 

person  on  account  of  any  act  done  under  the  provisions  of  title  twenty- 
six,  The  Elective  Franchise,  or  on  account  of  any  right,  title  or  author- 
ity claimed  by  any  officer  or  other  person  under  any  of  said  provisions." 

SEa  2.  That  all  other  statutes  and  parts  of  statutes  relating  in  any 
manner  to  supervisors  of  election  and  special  deputy  marshals  be,  and 
the  same  are  hereby  repealed. 

SEa  3.    That  this  Act  shall  take  effect  from  and  after  its  passage. 


ELECTION  OF  SEl^ATOES. 
(REVISED  STATUTES,  U.  8.,  TITLE  II,  CHAPTER  I| 

Skc.  14.  When  Senators  to  be  elected. 

15.  Mode  of  election. 

16.  Vacancy  oceurring  before  meeting  of  legislature. 

17.  Vacancy  occurring  during  session  of  legislature. 

18.  Election  of  Senators  certified. 

19.  Countersign  of  certificate. 

Sec.  14.  The  legislature  of  each  State  which  is  chosen  next  preceding 
the  expiration  of  the  time  for  which  any  Senator  was  elected  to  represent 
each  State  in  Congress  shall,  on  the  second  Tuesday  after  the  meeting 
and  organization  thereof,  proceed  to  elect  a  Senator  in  Congress. 

Sec.  15.  Such  election  shall  be  conducted  in  the  following  manner: 
Each  house  shall  openly,  by  a  viva-voce  vote  of  eack  member  present,  naine 
•He  person  for  Senator  in  Congress  from  such  State,  and  the  name  of  the- 
person  so  voted  for,  who  receives  a  majority  of  the  whole  number  of 
wotoi  cast  in  each  house,  shall  be  entered  on  the  journal  of  that  house  by 
tiie  clerk  or  secretary  thereof;  or  if  either  house  fails  to  give  such  major. 
•ly  to  any  person  on  that  day,  the  fact  shall  be  entered  on  the  journal.  At 
twelve  o'clock  meridian  of  the  day  following  that  on  which  proceedings 
*re  required  to  take  place  as  aforesaid,  the  members  of  the  two  houses 
vUeit  convene  in  joint  assembly,  and  the  journal  of  each  house  shall  then 
be  r*«d,  and  if  the  same  person  has  received  a  majority  of  all  the  votes 
in  each  house,  he  shall  be  declared  duly  elected  Senator.  But  if  the  same 
person  has  not  received  a  majority  of  the  votes  in  each  house,  or  if  eiUter 
house  has  failed  to  take  proceedings  as  required  by  this  section,  the  joiirt 
assembly  shall  then  proceed  to  choose,  by  a  viva-voce  vote  of  each  mem- 
ber present,  a  person  for  Senator,  and  the  person  who  receives  a  majority 
of  all  the  votes  of  the  joint  assembly,  a  majority  of  all  the  members  eleeted 
to  both  houses  being  present  and  voting,  shall  be  declared  duly  elected. 
If  no  person  receives  such  majority  on  the  first  day,  the  joint  assembly 
shall  meet  at  twelve  o'clock  meridian  of  each  succeeding  day  during  the 
session  of  the  legislature,  and  shall  take  at  least  one  vote,  until  a  Senator 
is  elected. 


APPENDIX. ELECTION    0¥    KEPEESENTATIVBS.  541 

Sec.  16.  Whenever  on  the  meeting  of  the  legislature  of  any  State  a 
vacancy  exists  in  the  representation  of  such  State  in  the  Senate,  the  legis- 
lature shall  proceed,  on  the  second  Tuesday  after  meeting  and  organiz*. 
tion,  to  elect  a  person  to  fill  such  vacancy,  in  the  manner  prescribed  in 
the  preceding  section  for  the  election  of  a  Senator  for  a  full  term. 

Skc.  17.  Whenever  during  the  session  of  the  legislature  of  any  State  a 
vacancy  occurs  in  the  representation  of  such  State  in  the  Senate,  similar 
proceedings  to  fill  such  vacancy  shall  be  had  on  the  second  Tuesday  after 
the  legislature  has  organized  and  has  notice  of  such  vacancy. 

Sec.  18.  It  shall  be  the  duty  of  the  executive  of  the  State  from  which 
any  Senator  has  been  chosen,  to  certify  his  election,  under  the  seal  of  the 
State,  to  the  President  of  the  Senate  of  the  United  States. 

Sec.  19.  The  certificate  mentioned  in  the  preceding  section  shall  b« 
countersigned  by  the  secretary  of  state  of  the  State. 


THE  ELECTION  OF  REPRESENTATIYES. 

(THE  FOLLOWING  ARE  THE  MATERIAL  PORTIONS  OF  THE 
ACTS  OF  CONGRESS  IN  FORCE  UPON  THIS  SUBJECT,  AND 
FOUND  IN  REVISED  STATUTES,  U.  S.,  TITLE  II,  CHAPTER  II.) 

Skc.  23.  Should  any  State  deny  or  abridge  the  right  of  any  of  the  male 
inhabitants  thereof,  being  twenty-one  years  of  age,  and  citizens  of  the 
United  States,  to  vote  at  any  election  named  in  the  amendment  to  the 
Constitution,  article  fourteen,  section  two,  except  for  participation  in  the 
rebellion  or  other  crime,  the  number  of  Representatives  apportioned  to 
such  State  shall  be  reduced  in  the  proportion  which  the  number  of  such 
male  citizens  shall  have  to  the  whole  number  of  male  citizens  twenty-one 
years  of  age  in  such  State. 

Sec.  23  has  been  repealed  by  the  following  Act: 

ACT  OF  FEBRUARY  7,  1891. 

As  Act  making  an  apportionment  of  Representatives  in  Congress  among  the  several 
States  imder  the  eleventh  census. 

Be  it  enacted,  etc.,  That  after  the  third  of  March,  eighteen  hundred 
and  ninety-three,  the  House  of  Representatives  shall  be  composed  of 
three  hundred  and  fifty-six  members,  to  be  apportioned  among  the  sev- 
eral States,  as  follows: 

Alabama,  nine.  Florida,  two. 

Arkansas,  six.  Georgia,  eleven, 

California,  seven.  Idaho,  one. 

Colorado,  two.  Illinois,  twenty-twa 

Connecticut,  four,  Indiana,  thirteen. 

Delaware,  one.  Iowa,  eleven. 


542  APPENDIX. ELECTION   OF    REPRESENTATIVES. 

Kansas,  eight.  North  Carolina,  nine. 

Kentucky,  eleven.  North  Dakota,  one. 

Louisiana,  six.  Ohio,  twenty-one. 

Maine,  four.  Oregon,  two. 

Maryland,  six.  Pennsylvania,  thirty. 

Massachusetts,  thirteen.  Rhode  Island,  two. 

Michigan,  twelve.  South  Carolina,  seven. 

Minnesota,  seven.  South  Dakota,  twa 

Mississippi,  seven.  Tennessee,  ten. 

Missouri,  fifteen.  Texas,  thirteen. 

Montana,  one.  Vermont,  twa 

Nebraska,  six.  Virginia,  ten. 

Nevada,  one.  Washington,  two. 

New  Hampshire,  two.  West  Virginia,  four. 

New  Jersey,  eight.  Wisconsin,  ten. 

New  York,  thirty-four.  Wyoming,  one. 

Seg  2.  That  whenever  a  new  State  is  admitted  to  the  Union,  the 
Representative  or  Representatives  assigned  to  it  shall  be  in  addition  to 
the  number  three  hundred  and  fifty-six. 

SEa  3.  That  in  each  State  entitled  under  this  apportionment  the 
number  to  which  each  State  may  be  entitled  in  the  Fifty-third  and 
each  subsequent  Congress  shall  be  elected  by  districts  composed  of  con- 
tiguous territory  and  containing  as  nearly  as  practicable  an  equal 
number  of  inhabitants.  The  said  districts  shall  be  equal  to  the  number 
of  the  Representatives  to  which  such  State  may  be  entitled  in  Con- 
gn^ess,  no  one  district  electing  more  than  one  Representative. 

Sec  4  That  in  case  of  an  increase  in  the  number  of  Representatives 
which  may  be  given  to  any  State  under  this  apportionment,  such  addi- 
tional Representative  or  Representatives  shall  be  elected  by  the  State 
at  large,  and  the  other  Representatives  by  the  districts  now  prescribed 
by  law  until  the  Legislature  of  such  State  in  the  manner  herein  pre- 
scribed shall  redistrict  such  State,  and  if  there  be  no  increase  in  the 
number  of  Representatives  from  a  State,  the  Representatives  thereof 
shall  be  elected  from  the  districts  now  prescribed  by  law  until  such 
State  be  redistricted  as  herein  prescribed  by  the  Legislature  of  said  State. 
Sec.  5.  That  all  acts  and  parts  of  acts  inconsistent  with  this  act  are 
hereby  repealed. 
«         •         •         •         »»•««*•••* 

Sec.  25.  The  Tuesday  next  after  the  first  Monday  in  November,  in  the 
year  eighteen  hundred  and  seventy-six,  is  established  as  the  day,  in  each 
of  the  States  and  Territories  of  the  United  States,  for  the  election  of 
Representatives  and  Delegates  to  the  Forty-fifth  Congress;  and  the 
Tuesday  next  after  the  first  Monday  in  November,  in  every  second  year 
thereafter,  is  established  as  the  day  for  the  election,  in  each  of  said  States 
and  Territories,  of  Representatives  and  Delegates  to  the  Congress,  com- 
mencing on  the  fourth  day  of  March  next  thereafter. 


APPENDIX. OEGAlSriZATION   OF   MEETINGS   OF   CONGEESS.     543 

Ch.  130,  Sup.  1874-1891,  R.  S.  (p.  76). 

SEa  6.  That  section  twenty-five  of  the  Revised  Statutes,  prescribing 
the  time  for  holding  elections  for  Representatives  to  Congress,  is  hereby 
modified  so  as  not  to  apply  to  any  State  that  has  not  yet  changed  its 
day  of  election,  and  whose  Constitution  must  be  amended  in  order  to 
effect  a  change  in  the  day  of  the  election  of  State  officers  in  said  State. 

Sec.  26.  The  time  for  holding  elections  in  any  State,  District,  or  Ter- 
ritory, for  a  Representative  or  Delegate  to  fill  a  vacancy,  whether  such 
vacancy  is  caused  by  a  failure  to  elect  at  the  time  prescribed  by  law,  or 
by  the  death,  resignation,  or  incapacity  of  a  person  elected,  may  be  pre- 
scribed by  the  laws  of  the  several  States  and  Territories  respectively. 

Sec.  27.  All  votes  for  Representatives  in  Congress  must  be  by  written 
or  printed  ballot ;  and  all  votes  received  or  recorded  contrary  to  this  sec- 
tion, shall  be  of  no  effect  But  this  section  shall  not  apply  to  any  State 
voting  otherwise  whose  election  for  Representatives  occurs  previous  to 
the  regular  meeting  of  its  legislature,  next  after  the  twenty-eighth  day  of 
February,  eighteen  hundred  and  seventy-one. 


ORGANIZATIOIT  OF  MEETINGS  OF  CONGRESS. 

(FROM  REVISED  STATUTES,  U.  S.,  TITLE  II,  CHAPTER  III.) 

Sec.  28.    Oath  of  Senators. 

29.  Oath  of  President  of  the  Senate. 

Act  of  April  18,  1878,  authorizing  Presiding  officer,  Secretajy 
and  Chief  Clerk  of  Senate  to  administer  oaths. 

30.  Oath  of  Speaker,  members  and  Delegatea 

31.  Roll  of  Representatives-elect. 

82.    When  roll  made  by  Sergeant-at-Arma. 
33.    When  by  Door-keeper. 

34     When  President  may  change  the  place  of  meeting. 
Sec.  28.    The  oath  of  office  shall  be  administered  by  the  President  of 
the  Senate  to  each  Senator  who  shall  hereafter  be  elected,  previous  to 
his  taking  his  seat. 

SEa  29.    When  a  President  of  the  Senate  has  not  taken  the  oath  of 
office,  it  shall  be  administered  to  him  by  any  member  of  the  Senate. 

ACT  OF  APRIL  18,  1876. 

Am  Act  further  to  provide  for  the  administering  of  oaths  in  the  Senate. 

Be  it  enacted,  etc..  That  the  presiding  officer,  for  the  time  being,  of  the 

Senate  of  the  United  States,  shall  have  power  to  administer  all  oaths 

and  affirmations  that  are  or  may  be  required  by  the  Constitution,  or  by 

law,  to  be  taken  by  any  Senator,  officer  of  the  Senate,  witness,  or  other 

person,  in  respect  to  any  matter  within  the  jurisdiction  of  the  Senate. 

Sec.  2.    That  the  Secretary  of  the  Senate,  and  the  Chief  Clerk  thereof. 


544  APPENDIX. —  CONTESTED    ELECTIONS. 

shall,  respectively,  have  power  to  administer  any  oath  or  aflBrmation 
required  by  law,  or  by  the  rules  or  orders  of  the  Senate,  to  be  taken  by 
any  officer  of  the  Senate,  and  to  any  witness  produced  before  it. 

SEa  30.  At  the  first  session  of  Congress  after  every  general  election 
of  Representatives,  the  oath  of  office  shall  be  administered  by  any  mem- 
ber of  the  House  of  Representatives  to  the  Speaker,  and  by  the  Speaker 
to  all  the  members  and  Delegates  present,  and  to  the  Clerk,  previous  to 
entering  on  any  other  business;  and  to  the  members  and  Delegates  who 
afterward  appear,  previous  to  their  taking  their  seats. 

Sec.  31.  Before  the  first  meeting  of  each  Congress  the  Clerk  of  the 
next  preceding  House  of  Representatives  shall  make  a  roll  of  the  Rep- 
resentatives elect,  and  place  thereon  the  names  of  those  persons,  and  of 
rach  persons  only,  whose  credentials  show  that  they  were  regularly 
elected  in  accordance  with  the  laws  of  their  States  respectively,  or  the 
laws  of  the  United  States. 

Sec.  32.  In  case  of  a  vacancy  in  the  office  of  Clerk  of  the  House  of 
Representatives,  or  of  the  absence  or  inability  of  the  Clerk  to  discharge 
the  duties  imposed  on  him  by  law  or  custom  relative  to  the  preparation 
of  the  roll  of  Representatives  or  the  organization  of  the  House,  those 
duties  shall  devolve  on  the  Sergeant-at-Arms  of  the  next  preceding  House 
of  Representatives. 

Sec.  33.  In  case  of  vacancies  in  the  offices  of  both  the  Clerk  and  the 
Sergeant-at-arms,  or  of  the  absence  or  inability  of  both  to  act,  the  duties 
of  the  Clerk  relative  to  the  preparation  of  the  roll  of  the  House  of  Repre- 
sentatives, or  the  organization  of  the  House  shall  be  performed  by  the 
Door-keeper  of  the  next  preceding  House  of  Representatives. 

Sec.  34.  Whenever  Congress  is  about  to  convene,  and  from  the  preva- 
lence of  contagious  sickness  or  the  existence  of  other  circumstances,  it 
would,  in  the  opinion  of  the  President,  be  hazardous  to  the  lives  or  health 
of  the  members  to  meet  at  the  seat  of  Government,  the  President  is 
authorized,  by  proclamation,  to  convene  Congress  at  such  other  place  as 
he  may  judge  proper. 


CONTESTED  ELECTIONS. 
(PROM  REVISED  STATUTES  U.  S.,  TITLE  II,  CHAPTER  YIIL) 

SEa  105.    Notice  of  intention  to  contest 

106.  Time  for  answer. 

107.  Time  for  taking  testimony. 

Act  of  March  2, 1875,  construing  preceding  section. 

108.  Notice  of  deposition,  service. 

109.  Testimony  taken  at  several  places  at  same  time. 


APPENDIX. —  CONTESTED    ELECTIONS.  545- 

SEa  110.  Who  may  issue  subpoenas. 

111.  What  the  subpoena  shall  contain. 

112.  When  justices  of  the  peace  may  acL 

113.  Depositions,  by  consent 

114.  Service  of  subpoena. 

115.  Witnesses  need  not  attend  out  of  the  counlj. 

116.  Penalty  for  failure  to  attend  or  testify. 

117.  Witnesses  outside  of  district. 

118.  Party  notified  may  select  an  officer.  <  ■ 

119.  Depositions  taken  by  party  or  agent 

120.  Examination  of  witnesses. 
131.  Testimony,  to  what  confined. 

122.  Testimony  how  written  out  and  attested. 

123.  Production  of  papers. 

124.  Adjournments. 

125.  Notice,  etc.,  attached  to  deposition. 

126.  Copy  of  notice  and  answer  to  accompany  testimony. 

127.  [Amended.]    How  testimony  to  be  sent  to  Clerk  of  House; 

how  opened. 

128.  Fees  of  witnesses. 

129.  Fees  of  officers. 

Act  of  March  3,  1879,  expenses  of  contest. 

Sec.  105.  Whenever  any  person  intends  to  contest  an  election  of  any 
member  of  the  House  of  Representatives  of  the  United  States,  he  shall, 
within  thirty  days  after  the  result  of  such  election  shall  have  been  deter- 
mined  by  the  officer  or  board  of  canvassers  authorized  by  law  to  deter- 
mine the  same,  give  notice,  in  writing,  to  the  member  whose  seat  he 
designs  to  contest,  of  his  intention  to  contest,  the  same,  and,  in  such 
notice,  shall  specify  particularly  the  grounds  upon  which  he  relies  in  the 
contest. 

Sec.  106.  Any  member  upon  whom  the  notice  mentioned  in  the 
preceding  section  may  be  served  shall,  within  thirty  days  after  the  ser- 
vice thereof,  answer  such  notice,  admitting  or  denying  the  facts  alleged 
therein,  and  stating  specifically  any  other  grounds  upon  which  he  rests 
the  validity  of  his  election ;  and  shall  serve  a  copy  of  his  answer  upon 
the  contestant. 

Sec.  107.  In  all  contested-election  cases  the  time  allowed  for  taking 
testimony  shall  be  ninety  days,  and  the  testimony  shall  be  taken  in  the 
following  order.  The  contestant  shall  take  testimony  during  the  first 
forty  days,  the  returned  member  during  the  succeeding  forty  days,  and 
the  contestant  may  take  testimony  in  rebuttal  only  during  the  remain- 
ing ten  days  of  said  period. 

ACT  OF  MARCH  2, 1875. 
Ch.  119,  Sup.  1874-1891  (p.  69). 

SEa  2.  That  section  one  hundred  and  seven  of  the  Revised  Statutes 
of  the  United  States  shall  be  construed  as  requiring  all  testimony  In 
cases  of  contested  election  to  be  taken  within  ninety  days  from  the 
day  on  which  the  answer  of  the  returned  member  is  served  upon  the 
contestant. 


546 


APPENDIX. —  CONTESTED    ELECTIONS. 


8bo.  108.  The  party  desiring  to  take  a  deposition  under  the  provi 
sions  of  this  chapter  shall  give  the  opposite  party  notice,  in  writing,  oJ 
the  time  and  place,  when  and  where  the  same  will  be  taken,  of  the  nam* 
of  the  witness  to  be  examined  and  their  places  of  residence,  and  of  the 
name  of  an  oflacer  before  whom  the  same  will  be  taken.  The  notice 
shall  be  personally  served  upon  the  opposite  party,  or  upon  any  agent 
or  attorney  authorized  by  h'm  to  take  testimony  or  cross-examine  wit- 
nesses in  the  matter  of  such  contest,  if,  by  the  use  of  reasonable  dili- 
gence,  such  personal  service  can  be  made ;  but  if,  by  the  use  of  such 
diligence,  personal  service  can  not  be  made,  the  service  may  be  made  by 
leaving  a  duplicate  of  the  notice  at  the  usual  place  of  abode  of  the  op- 
posite  party.  The  notice  shall  be  served  so  as  to  allow  the  opposite 
party  sufficient  time  by  the  usual  route  of  travel  to  attend,  and  one  day 
for  preparation  exclusive  of  Sundays  and  the  day  of  service.  Testimony 
in  rebuttal  may  be  taken  on  five  days'  notice. 

Sec.  109.  Testimony  in  contested-election  cases  may  be  taken  at  two 
or  more  places  at  the  same  time. 

Skc.  110.    When  any  contestant  or  returned  member  is  desirous  of 
obtaining  testimony  respecting  a  contested  election,  he  may  apply  for  a 
subpoena  to  either  of  the  following  officers  who  may  reside  within  th« 
congressional  district  in  which  the  election  to  be  contested  was  held: 
First    Any  judge  of  any  court  of  the  United  States. 
Second.    Any  chancellor,  judge,  or  justice  of  a  court  of  record  of  any 
State. 
Third.    Any  mayor,  recorder,  or  intendent  of  any  town  or  city. 
Fourth.    Any  register  in  bankruptcy  or  notary  public. 
Skc.  111.    The  officer  to  whom  the  application  authorized  by  the  pre- 
ceding section  is  made,  shall  thereupon  issue  his  writ  of  subpoena  di- 
rected to  all  such  witnesses  as  shall  be  named  to  him,  requiring  theii 
attendance  before  him,  at  some  time  and  place  named  in  the  subpoena,  in 
order  to  be  examined  respecting  the  contested  election. 

Sec.  112.  In  case  none  of  the  officers  mentioned  in  section  one  hun- 
dred and  ten  are  residing  in  the  congressional  district  from  which  the 
election  is  proposed  to  be  contested,  the  application  thereby  authorized 
may  be  made  to  any  two  justices  of  the  peace  residing  within  the  district; 
and  they  may  receive  such  application,  and  jointly  proceed  upon  it. 

Sec.  113.  It  shall  be  competent  for  the  parties,  their  agents  or  attor- 
neys authorized  to  act  in  the  premises,  by  consent  in  writing,  to  take 
depositions  without  notice ;  also  by  such  written  consent,  to  take  depo- 
sitions (whether  upon  or  without  notice),  before  any  officer  or  officers 
authorized  to  take  depositions  in  common  law,  or  civil  actions,  or  in 
chancery,  by  either  the  laws  of  the  United  States,  or  of  the  State  in 
which  the  same  may  be  taken,  and  to  waive  proof  of  the  official  charac- 
ter of  such  officer  or  officers.  Any  written  consent  given  as  aforesaid 
shall  be  returned  with  the  depositions. 

Sec.  114.  Each  witness  shall  be  duly  served  with  a  subpoena,  by  a 
copy  thereof  delivered  to  him  or  left  at  his  usual  place  of  abode,  at  leaal 


APPENDIX. CONTESTED    ELECTIONS.  547 

five  days  before  the  day  on  which  the  attendance  of  the  witness  is  re- 
quix-ed. 

Sec.  115.  No  witness  shall  be  required  to  attend  an  examination  out 
of  the  county  in  which  he  may  reside  or  be  served  with  a  subpoena. 

Sec.  116.  Any  person  who,  having  been  summoned  in  the  manner 
above  directed,  refuses  or  neglects  to  attend  and  testify,  unless  prevented 
by  sickness  or  unavoidable  necessity,  shall  forfeit  the  sum  of  twenty 
dollars,  to  be  recovered,  with  costs  of  suit,  by  the  party  at  whose  in- 
stance the  subpoena  was  issued,  and  for  his  use,  by  an  action  of  debt,  in 
j.ny  court  of  the  United  States;  and  shall  also  be  liable  to  an  indictment 
for  a  misdemeanor,  and  punishment  by  fine  and  imprisonment. 

Sec.  117.  Depositions  of  witnesses  residing  outside  of  the  district 
and  beyond  the  reach  of  a  subpoena  may  be  taken  before  any  ofiicer  au- 
thorized by  law  to  take  testimony  in  contested-election  cases  in  the  dis- 
trict in  which  the  witness  to  be  examined  may  reside. 

8bc.  118.  The  party  notified  as  aforesaid,  his  agent  or  attorney,  may, 
If  he  see  fit,  select  an  officer  (having  authority  to  take  depositions  in  such 
cases),  to  officiate  with  the  ofiicer  named  in  the  notice,  in  the  taking  of 
the  depositi(»ns ;  and  if  both  such  oflicers  attend,  the  depositions  shall  be 
taken  before  them  both,  sitting  together,  and  be  certified  by  them  both. 
But  if  only  one  of  such  officers  attend,  the  depositions  may  be  taken 
before  and  certified  by  him  alone. 

Sec.  119.  At  the  taking  of  any  deposition  under  this  chapter,  either 
party  may  appear  and  act  in  person,  or  by  agent  or  attorney. 

Seo.  120.  All  witnesses  who  attend  in  obedience  to  a  subpoena,  or  who 
attend  voluntarily  at  the  time  and  place  appointed,  of  whose  examination 
notice  has  been  given,  as  provided  by  this  chapter,  shall  then  and  there 
be  examined  on  oath  by  the  officer  who  issued  the  subpoena  or,  in  case  of 
his  absence,  by  nny  other  officer  who  is  authorized  to  issue  such  sub- 
poena, or  by  the  officer  before  whom  the  depositions  are  to  be  taken  by 
written  consent,  or  before  whom  the  depositions  of  witnesses  residing 
outside  of  the  diMtrict  are  to  be  taken,  as  the  case  may  be,  touching  all 
such  matters  respecting  the  election  about  to  be  contested  as  shall  be 
proposed  by  either  of  the  parties  or  their  agents. 

Sec.  121.  Th<9  testimony  to  be  taken  by  either  party  to  the  contest 
shall  be  confined  to  the  proof  or  disproof  of  the  facts  alleged  or  denied 
in  the  notice  and  answer  mentioned  in  sections  one  hundred  and  five  and 
one  hundred  and  six. 

Sec.  122.  The  officer  shall  cause  the  testimony  of  the  witnesses,  to- 
gether  with  the  questions  proposed  by  the  parties  or  their  agents,  to  be 
reduced  to  writing  in  his  presence,  and  in  the  presence  of  the  parties  or 
their  agents,  if  attending,  and  to  be  duly  attested  by  the  witnesses 
respectively. 

Sec.  123.  The  officer  shall  have  power  to  require  the  production  of 
papers;  and  on  the  refusal  or  neglect  of  any  person  to  produce  and  de- 
liver up  any  paper  or  papers  in  his  possession  pertaining  to  the  election, 
<w  to  produce  and  deliver  up  certified  or  sworn  copies  of  the  same  in  case 
they  may  be  official  papers,  such  person  shall  be  liable  to  all  the  penal- 
ties prescribed  in  section  one  hundred  and  sixteen.    All  papers  thus 


548  APPENDIX. CK>NTE3TED    ELECTIONS. 

produced,  and  all  certified  or  sworn  copies  of  official  papers,  shall  be 
transmitted  by  the  officer,  with  the  testimony  of  the  witnesses,  to  the 
Clerk  of  the  House  of  Representatives. 

SEa  124.  The  taking  of  the  testimony  may,  if  so  stated  in  the  notice, 
be  adjourned  from  day  to  day. 

SEa  125.  The  notice  to  take  depositions,  with  the  proof  or  acknowl- 
edgment of  the  service  thereof,  and  a  copy  of  the  subpoena,  where  any 
has  been  served,  shall  be  attached  to  the  depositions  when  completed. 

SEa  126.  A  copy  of  the  notice  of  contest  and  of  the  answer  of  the 
returned  member,  shall  be  prefixed  to  the  depositions  taken,  and  trans- 
mitted with  them  to  the  Clerk  of  the  House  of  Representativea 

SEa  127  AS  AMENDED  BY  ACTT  OF  MARCH  2, 1887. 
Ch.  318,  Sup.  1874-1891  (p.  553). 

All  officers  taking  t^estimony  to  be  used  in  a  contested  election  case, 
whether  by  deposition  or  otherwise,  shall,  when  the  taking  of  the  same 
is  completed,  and  without  unnecessary  delay,  certify  and  carefully  seal 
and  immediately  forward  the  same,  by  mail  or  by  express,  addressed 
to  the  Clerk  of  the  Hoiise  of  Representatives  of  the  United  States, 
Washington,  District  of  Columbia;  and  shall  also  indorse  upon  the 
envelope  containing  such  deposition  or  testimony,  the  name  of  the  case 
in  which  it  is  taken,  together  with  the  name  of  the  party  in  whose 
behalf  it  is  taken,  and  shall  subscribe  such  indorsement 

The  Clerk  of  the  House  of  Representatives,  upon  the  receipt  of  such 
deposition  or  testimony,  shall  notify  the  contestant  and  the  contestee, 
by  registered  letter  through  the  mails,  to  appear  before  him  at  the 
Capitol,  in  person  or  by  attorney,  at  a  reasonable  time  to  be  named,  not 
exceeding  twenty  days  from  the  mailing  of  such  letter,  for  the  purpose 
of  being  present  at  the  opening  of  the  sealed  packages  of  testimony, 
and  of  agreeing  upon  the  parts  thereof  to  be  printed. 

Upon  the  day  appointed  for  such  meeting,  the  said  Clerk  shall  pro- 
ceed to  open  all  the  packages  of  testimony  in  the  case,  in  the  presence 
of  the  parties  or  their  attorneys,  and  such  portions  of  the  testimony  as 
the  parties  may  agree  to  have  printed  shall  be  printed  by  the  Public 
Printer,  under  the  direction  of  the  said  Clerk ;  and  in  case  of  disagree- 
ment between  the  parties  as  to  the  printing  of  any  portion  of  the  tes- 
timony, the  said  Clerk  shall  determine  whether  such  portion  of  the 
testimony  shall  be  printed;  and  the  said  Clerk  shall  prepare  a  suitable 
index  to  be  printed  with  the  record. 

And  the  notice  of  contest  and  the  answer  of  the  sitting  member,  shall 
also  be  printed  with  the  record. 

If  either  party,  after  having  been  duly  notified,  should  fail  to  attend, 
by  himself  or  by  an  attorney,  the  Clerk  shall  proceed  to  open  the  pack- 
ages, and  shall  cause  such  portions  of  the  testimony  to  be  printed  as  he 
shall  determine. 

He  shall  carefully  seal  up  and  preserve  the  portions  of  the  testimony 


APPENDIX, —  CONTESTED    ELECTIONS.  549 

not  printed,  as  well  as  the  other  portions  when  returned  from  the  Pub- 
lic Printer,  and  lay  the  same  before  the  Committee  on  Elections  at  the 
earliest  opportunity. 

As  soon  as  the  testimony  in  any  case  is  printed,  the  Clerk  shall  for- 
ward by  mail,  if  desired,  two  copies  thereof  to  the  contestant  and  the 
same  number  to  the  contestee;  and  shall  notify  the  contestant  to  file 
with  the  Clerk,  within  thirty  days,  a  brief  of  the  facts  and  authorities 
relied  on  to  establish  his  cas& 

The  Clerk  shall  forward  by  mail  two  copies  of  the  contestant's  brief 
to  the  contestee,  with  like  notice. 

Upon  receipt  of  the  contestee's  brief,  the  Clerk  shall  forward  two 
copies  thereof  to  the  contestant,  who  may,  if  he  desires,  reply  to  new 
matter  in  the  contestee's  brief  within  like  time. 

All  briefs  shall  be  printed  at  the  expense  of  the  parties  respectively, 
and  shall  be  of  like  folio  as  the  printed  record;  and  sixty  copies  thereof 
shall  be  filed  with  the  Clerk  for  the  use  of  the  Committee  on  Elections. 

Skc.  128.  Every  witnes*  attending  by  virtue  of  any  subpoena  herein 
directed  to  be  issued  shall  be  entitled  to  receive  the  sum  of  seventy-five 
cents  for  each  day's  attendance,  and  the  further  sum  of  five  cents  for  every 
mile  necessarily  traveled  in  going  and  returning.  Such  allowance  shall 
be  ascertained  and  certified  by  the  officer  taking  the  examination,  and 
shall  be  paid  by  the  party  at  whose  instance  such  witness  was  summoned. 

Sec.  129.  Each  judge,  justice,  chancellor,  chief  executive  officer  of  a 
town  or  city,  register  in  bankruptcy,  notary  public,  and  justice  of  the 
peace,  who  shall  be  necessarily  employed  pursuant  to  the  provisions  of 
this  chapter,  and  all  sheriffs,  constables,  or  other  officers  who  may  be 
employed  to  serve  any  subpoena  or  notice  herein  authorized,  shall  be  en- 
titled to  receive  from  the  party  at  whose  instance  the  service  shall  have 
been  performed,  such  fees  as  are  allowed  for  similar  services  in  th-t  &ate, 
wherein  such  services  may  be  rendered. 

ACT  OF  MARCH  3,  1879. 
(3h.  182,  par.  14,  Sup.  1874-1891,  R.  S.  (p.  252). 

That  hereafter  no  contestee  or  contestant  for  a  seat  in  the  House  of 
Representatives  shall  be  paid  exceeding  two  thousand  dollars  for  ex- 
penses in  election  contests. 

And  before  any  sum  whatever  shall  be  paid  to  a  contestant  or  con- 
testee for  expenses  of  election  contest  he  shall  file  with  the  Clerk  of  the 
Committee  on  Elections  a  full  and  detailed  account  of  his  expenses,  ac- 
companied by  the  vouchers  and  receipts  for  each  item,  which  account 
and  vouchers  shall  be  sworn  to  by  the  party  presenting  the  same,  and 
no  charges  for  witness  fees  shall  be  allowed  in  said  accounts  unless 
made  in  strict  conformity  to  section  one  hundred  and  twenty-eight  of 
the  Revised  Statutes  of  the  United  Statea 


550  AFPfiNDIX. — «r££SID£NTIAL   ELECTIONS. 


PRESIDENTIAL  ELECTTOKS. 
{PROM  REVISED  STATUTES   U.  8.,  TITLE  III,  CHAPTER  L) 

Seo.  131.  Time  of  appointing  electors. 

132.  Number  of  electors. 

133.  Vacancies  in  electoral  college. 

134.  Failure  to  make  a  choice  on  the  appointed  day, 
335.  Meeting  of  electoral  college. 

136.  List  of  names  of  electors  to  be  furnished  to  them. 

137.  Manner  of  voting. 

138.  Certificates  to  be  made  and  signed. 

139.  Certificates  to  be  sealed  and  indorsed. 

140.  The  transmission  of  the  certificates. 

141.  When   Secretary  of  State  shall  send   for  district  judge's 

list 

142.  Counting  the  electoral  votes  in  Congress. 

143.  Provision  for  absence  of  President  of  the  Senate. 
144    Mileage  of  messengers. 

145.    Forfeiture  for  messenger's  neglect  of  duty. 

Act  of  January  19,  1886,  repealing  sections  146  to  150  in- 
clusive, and  providing  for  the  performance  of  duties  of 
President  in  case  of  disability  of  President  and  Vice-Presi- 
dent. 
151.    Resignation  or  refusal  of  oflBce. 
fiKC.  131.    Except  in  case  of  a  presidential  election  prior  to  the  ordi- 
nary period,  as  specified  in  sections  one  hundred  and  forty-s«ven  to  one 
hundred  and  forty-nine,  inclusive,  when  the  offices  of  President  and  Vice- 
President  both  become  vacant,  the  electors  of  President  and  Vice-Presi- 
dent shall  be  appointed,  in  each  State,  on  the  Tuesday  next  after  the  first 
Monday  in  November,  in  every  fourth  year  succeeding  every  election  of 
a  President  and  Vice-President. 

Sec.  132.  The  number  of  electors  shall  be  equal  to  the  number  of 
Senators  and  Representatives  to  which  the  several  States  are  by  law  en- 
titled at  the  time  when  the  President  and  Vice-President  to  be  chosen 
come  into  office;  except,  that  where  no  apportionment  of  Representa- 
tives has  been  made  after  any  enumeration,  at  the  time  of  choosing 
electors,  the  number  of  electors  shall  be  according  to  the  then  existing 
apportionment  of  Senators  and  Representatives. 
Sbo.  133.    Each  State  may,  by  law,  provide  for  the  filling  of  any  yacaO' 


APPENDIX. PRESIDENTIAL    ELECTIONS. 


551 


cies  which  may  occur  in  its  college  of  electors  when  such  college  meets 
to  give  its  electoral  vote. 

Sec.  134.  Whenever  any  State  has  held  an  election  for  the  purpose  of 
choosing  electors,  and  has  failed  to  make  a  choice  on  the  day  prescribed 
by  law,  the  electors  may  be  appointed  on  a  subsequent  day  in  such  man- 
ner as  the  legislature  of  such  State  may  direct. 

Sec.  135.  The  electors  for  each  State  shall  meet  and  give  their  votes 
upon  the  first  Wednesday  in  December,  in  the  year  in  which  they  are 
appointed,  at  such  place,  in  each  State,  as  the  legislature  of  such  State 
shall  direct 

Sec.  136.  It  shall  be  the  duty  of  the  executive  of  each  State  to  cause 
three  lists  of  the  names  of  the  electors  of  such  State  to  be  made  and  cer- 
tified, and  to  be  delivered  to  the  electors  on  or  before  the  day  on  which 
they  are  required,  by  the  preceding  section,  to  meet. 

Sec.  137.  The  electors  shall  vote  for  President  and  Vice-President 
respectively,  in  the  manner  directed  by  the  constitution. 

Sec.  138.  The  electors  shall  make  and  sign  three  certificates  of  all  the 
votes  given  by  them,  each  of  which  certificates  shall  contain  two  distinct 
lists,  one  of  the  votes  for  President,  and  the  other  of  the  votes  for  Vice- 
President,  and  shall  annex  to  each  of  the  certificates  one  of  the  lists  of 
the  electors  which  shall  have  been  furnished  to  them  by  direction  of  the 
executive  of  the  State. 

Sec.  139.  The  electors  shall  seal  up  the  certificates  so  made  by  them, 
and  certify  upon  each  that  the  lists  of  all  the  votes  of  such  State  given 
for  President,  and  of  all  the  votes  given  for  Vice-President,  are  contained 
therein. 

Sec.  140.  The  electors  shall  dispose  of  the  certificates  thus  made  by 
them  in  the  following  manner : 

One.  They  shall,  by  writing  under  their  hands,  or  under  the  hands  of 
a  majority  of  them,  appoint  a  person  to  take  charge  of  and  deliver  to  the 
President  of  the  Senate,  at  the  seat  of  Government,  before  the  first 
Wednesday  in  January  then  next  ensuing,  one  of  the  certificates. 

Two.  They  shall  forthwith  forward  by  the  post-office  to  the  President 
of  the  Senate,  at  the  seat  of  Government,  one  other  of  the  certificates. 

Three.  They  shall  forthwith  cause  the  other  of  the  certificates  to  be 
delivered  to  the  judge  of  that  district  in  which  the  electors  shall 
assemble. 

Sec.  141.  Whenever  a  certificate  of  votes  from  any  State  has  not  been 
received  at  the  seat  of  Government  on  the  first  Wednesday  of  January, 
indicated  by  the  preceding  section,  the  Secretary  of  State  shall  send  a 
special  messenger  to  the  district  judge  in  whose  custody  one  certificate 
of  the  votes  from  that  State  has  been  lodged,  and  such  judge  shall  forth- 
with transmit  that  list  to  the  seat  of  Government. 

Sec.  142.  Congress  shall  be  in  session  on  the  second  Wednesday  in 
February  succeeding  every  meeting  of  the  electors,  and  the  certificates, 
or  so  many  of  them  as  has  been  received,  shall  then  be  opened,  the  votes 


552  APPENDIX. ^PEESIDENTIAL    ELECTIONS. 

counted,  and  the  persons  to  fill  the  offices  of  Pre3ident  and  Vice-Preei- 
deat  ascertained  and  declared  agreeable  to  the  constitution. 

Skc.  143.  In  case  there  shall  be  no  President  of  the  Senate  at  the  seat 
of  Government  on  the  arrival  of  the  persons  intrusted  with  the  certifi- 
cates of  the  votes  of  the  electors,  then  such  persons  shall  deliver  such 
certificates  into  the  office  of  the  Secretary  of  State,  to  be  safely  kept, 
and  delivered  over  as  soon  as  may  be  to  the  President  of  the  Senate. 

iSec.  144.  Each  of  the  persons  appointed  by  the  electors  to  deliver  the 
certificates  of  votes  to  the  President  of  the  Senate  shall  be  allowed,  on 
the  delivery  of  the  list  entrusted  to  him,  twenty-five  cents  for  every  mile 
of  the  estimated  distance,  by  the  most  usual  road,  from  the  place  of  meet- 
ing of  the  electors  to  the  seat  of  government  of  the  United  States. 

Skc.  145.  Every  person,  who,  having  been  appointed,  pursuant  to  sub- 
division one  of  section  one  hundred  and  forty,  or  to  section  one  hundred 
and  forty-one,  to  deliver  the  certificates  of  the  votes  of  the  electors  to  the 
President  of  the  Senate,  and  having  accepted  such  appointment,  shall 
neglect  to  perform  the  services  required  from  him,  shall  forfeit  the  sum 
of  one  thousand  dollars. 

ACT  or  JANUARY  19,  1886. 

An  Act  to  provide  for  the  performance  of  the  duties  of  the  oflQce  of  President  In  case  of 
the  removal,  death,  resignation,  or  Inability,  both  of  the  President  and  Vice-Presi- 
dent. 

Be  it  enacted,  etc.,  That  in  case  of  removal,  death,  resignation  or  in- 
ability of  both  the  President  and  Vice-President  of  the  United  States, 
the  Secretary  of  State,  or  if  there  be  none,  or  in  case  of  his  removal, 
death,  resignation  or  inability,  then  the  Secretary  of  the  Treasury,  or  if 
there  be  none,  or  in  case  of  his  removal,  death,  resignation  or  inability, 
then  the  Secretary  of  War,  or  if  there  be  none,  or  in  case  of  his  removal, 
death,  resignation  or  inability,  then  the  Attorney-General,  or  if  there 
be  none,  or  in  case  of  his  removal,  death,  resignation  or  inability,  then 
the  Postmaster-General,  or  if  there  be  none,  or  in  case  of  his  removal, 
death,  resignation  or  inability,  then  the  Secretary  of  the  Navy,  or  if 
there  be  none,  or  in  case  of  his  removal,  death,  resignation  or  inability, 
then  the  Secretary  of  the  Interior  shall  act  as  President  until  the  dis- 
ability of  the  President  or  Vice-President  is  removed  or  a  President  shall 
be  elected: 

Provided,  That  whenever  the  powers  and  duties  of  the  office  of  Presi- 
dent of  the  United  States  shall  devolve  upon  any  of  the  persons  named 
herein,  if  Congress  be  not  then  in  session,  or  if  it  would  not  meet  in 
accordance  with  law  within  twenty  days  thereafter,  it  shall  be  the 
duty  of  the  person  upon  whom  said  powers  and  duties  shall  devolve 
to  issue  a  proclamation  convening  Congress  in  extraordinary  session, 
giving  twenty  days  notice  of  the  time  of  meeting. 

Sec.  2.    That  the  preceding  section  shall  only  be  held  to  describe  and 


APPENDIX. PRESroENTIAL   ELECTIONS.  553 

apply  to  such  officers  as  shall  have  been  appointed  by  the  advice  and 
eonsent  of  the  Senate  to  the  offices  therein  named,  and  such  as  are 
eligible  to  the  office  of  President  under  the  Constitution,  and  not  under 
impeachment  by  the  House  of  Representatives  of  the  United  States  at 
the  time  the  powers  and  duties  of  the  office  shall  devolve  upon  them 
respectively. 

Sec.  3.  That  sections  one  hundred  and  forty-six,  one  hundred  and 
forty-seven,  one  hundred  and  forty-eight,  one  hundred  and  forty-nine 
and  one  hundred  and  fifty  of  the  Revised  Statutes  are  hereby  repealed. 

Sec.  151.  The  only  evidence  of  a  refusal  to  accept,  or  of  a  resignation 
of  the  office  of  President  or  Vice-President,  shall  be  an  instrument  in 
writing,  declaring  the  same,  and  subscribed  by  the  person  refusing  to 
accept  or  resigning,  as  the  case  may  be,  and  delivered  into  the  office 
of  the  Secretary  of  State. 

ACT  OF  FEBRUARY  3,  1887. 
An  Act  to  fix  the  day  for  the  meeting  of  the  electors  of  President  and  Vice-President, 
and  to  provide  for  and  regulate  the  counting  of  the  Totes  for  President  and  Vice- 
President,  and  the  decision  of  questions  arising  thereon. 

Be  it  enacted  by  the  Senate  and  Rouse  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  That  the  electors  of  each.  State 
shall  meet  and  give  their  votes  on  the  second  Monday  in  January  next 
following  their  appointment,  at  such  place  in  each  State  as  the  legisla- 
ture  of  such  State  shall  direct. 

Sec.  3.  That  if  any  State  shall  have  provided,  by  laws  enacted  prior  to 
to  the  day  fixed  for  the  appointment  of  the  electors,  for  its  final  determi- 
nation of  any  controversy  or  contest  concerning  the  appointment  of  all  or 
any  of  the  electors  of  such  State,  by  judicial  or  other  methods  or  pro- 
cedures, and  such  determination  shall  have  been  made  at  least  six  days 
before  the  time  fixed  for  the  meeting  of  the  electors,  such  determination 
made  pursuant  to  such  law  so  existing  on  said  day,  and  made  at  least  six 
days  prior  to  the  said  time  of  meeting  of  the  electors,  shall  be  conclusive, 
and  shall  govern  in  the  counting  of  the  electoral  votes  as  provided  in  the 
Constitution,  and  as  hereinafter  regulated,  so  far  as  the  ascertainment  of 
the  electors  appointed  by  such  State  is  concerned. 

Sec.  8.  That  it  shall  be  the  duty  of  the  executive  of  each  State,  as 
soon  as  practicable  after  the  conclusion  of  the  appointment  of  electors 
in  such  State,  by  the  final  ascertainment  under  and  in  pursuance  of  the 
laws  of  such  Slate  providing  for  such  ascertainment,  to  communicate, 
under  the  seal  of  the  State,  to  the  Secretary  of  State  of  the  United 
States,  a  certificate  of  such  ascertainment  of  the  electors  appointed. 
Betting  forth  the  names  of  such  electors  and  the  canvass  or  other  ascer- 
tainment  under  the  laws  of  such  State  of  the  number  of  votes  given  or 
cast  for  each  person  for  whose  appointment  any  and  all  votes  have  been 
given  or  cast;  and  it  shall  also  thereupon  be  the  duty  of  the  executive  of 
each  State  to  deliver  to  the  electors  of  such  State,  on  or  before  the  day  on 
which  they  are  reqired  by  the  preceding  section  to  meet,  the  same  cer- 


654  APPENDIX. PRESIDENTIAL    ELECTIONS. 

tiflcate,  in  triplicate,  under  the  seal  of  the  State ;  and  such  certificate 
shall  be  inclosed  and  transmitted  by  the  electors  at  the  same  time  and  in 
the  same  manner  as  is  provided  by  law  for  transmitting  by  such  electors 
to  the  seat  of  Government  the  lists  of  all  persons  voted  for  as  President 
and  of  all  persons  voted  for  as  Vice-President;  and  section  one  hundred 
and  thirty-six  of  the  Revised  Statutes  is  hereby  repealed;  and  if  there 
shall  have  been  any  final  determination  in  a  State  of  a  controversy  or 
contest  as  provided  for  in  section  two  of  this  act,  it  shall  be  the  duty  of 
the  executive  of  such  State,  as  soon  as  practicable  after  such  determina- 
tion, to  communicate  under  the  seal  of  the  State,  to  the  Secretary  of 
State  of  the  United  States,  a  certificate  of  such  determination,  in  form 
and  manner  as  the  same  shall  have  been  made ;  and  the  Secretary  of  State 
of  the  United  States,  as  soon  as  practicable  after  the  receipt  at  the  State 
Department  of  each  of  the  certificates  hereinbefore  directed  to  be  trans- 
mitted to  the  Secretary  of  State,  shall  publish,  in  such  public  newspaper 
as  he  shall  designate,  such  certificates  in  full;  and  at  the  first  meeting  of 
Congress  thereafter  he  shall  transmit  to  the  two  Houses  of  Congress 
copies  in  full  of  each  and  every  such  certificate  so  received  theretofore  at 
the  State  Department. 

Ssc.  4.  That  Congress  shall  be  in  session  on  the  second  Wednesday 
m  February  succeeding  every  meeting  of  the  electors.  The  Senate  and 
House  of  Representatives  shall  meet  in  the  Hall  of  the  House  of  Repre- 
sentatives at  the  hour  of  one  o'clock  in  the  afternoon  on  that  day,  and  the 
President  of  the  Senate  shall  be  their  presiding  officer.  Two  tellers 
shall  be  previously  appointed  on  the  part  of  the  Senate  and  two  on  the 
part  of  the  House  of  Representatives,  to  whom  shall  be  handed,  as  they 
are  opened  by  the  President  of  the  Senate,  all  the  certificates  and  papers 
purporting  to  be  certificates  of  the  electoral  votes,  which  certificates 
and  papers  shall  be  opened,  presented,  and  acted  upon  in  the  alphabeti- 
cal order  of  the  States,  beginning  with  the  letter  A;  and  said  tellers, 
having  then  read  the  same  in  the  presence  and  hearing  of  the  two  Houses, 
shall  maice  a  list  of  the  votes  as  they  shall  appear  from  the  said  certifi- 
cates ;  and  the  votes  having  been  ascertained  and  counted  in  the  manner 
and  according  to  the  rules  in  this  act  provided,  the  result  of  the  same 
shall  be  delivered  to  the  President  of  the  Senate,  who  shall  thereupon 
announce  the  state  of  the  vote,  which  announcement  shall  be  deemed  a 
sufficient  declaration  of  the  persons,  if  any,  elected  President  and  Vice- 
President  of  the  United  States,  and  together  with  a  list  of  votes,  be  en- 
tered on  the  Journals  of  the  two  Houses.  Upon  such  reading  of  any  such 
certificate  or  paper,  the  President  of  the  Senate  shall  call  for  objections, 
if  any.  Every  objection  shall  be  made  in  writing,  and  shall  state  clearly 
and  concisely,  and  without  argument,  the  ground  thereof,  and  shall  be 
signed  by  at  least  one  Senator  and  one  Member  of  the  House  of  Repre- 
sentatives before  the  same  shall  be  received.  When  all  objections  so 
made  to  any  vote  or  paper  from  a  State  shall  have  been  received  and 
read,  the  Senate  shall  thereupon  withdraw,  and  such  objections  shall  be 
submitted  to  the  Senate  for  its  decision ;  and  the  Speaker  of  the  House 


APPENDIX. PKESIDENTIAL    ELECTIONS.  555 

of  Representatives  shall,  in  like  manner,  submit  such  objections  to  the 
House  of  Representatives  for  its  decision ;  and  no  electoral  vote  or  votes 
from  any  State  which  shall  have  been  regularly  given  by  electors  whose 
appointment  has  been  lawfully  certified  to  according  to  section  three  of 
this  act  from  which  but  one  return  has  been  received  shall  be  rejected, 
but  the  two  Houses  concurrently  may  reject  the  vote  or  votes  when  they 
agree  that  such  vote  or  votes  have  not  been  so  regularly  given  by  electors 
whose  appointment  has  been  so  certified.    If  more  than  one  return  of 
paper  purporting  to  be  a  return  from  a  State  shall  have  been  received  by 
the  President  of  the  Senate,  those  votes,  and  those  only,  shall  be  counted 
which  shall  have  been  regularly  given  by  the  electors  who  are  shown  by 
the  determination  mentioned  in  section  two  of  this  act  to  have  been  ap- 
pointed, if  the  determination  in  said  section  provided  for  shall  have  been 
made,  or  by  such  successors  or  substitutes,  in  case  of  a  vacancy  in  the 
board  of  electors  so  ascertained,  as  have  been  appointed  to  fill  such  va- 
cancy in  the  mode  provided  by  the  laws  of  the  State ;  but  in  case  there 
shall  arise  the  question  which  of  two  or  more  of  such  State  authori- 
ties  determining  what  electors  have  been  appointed,  as  mentioned  in 
section  two  of  this  act,  is  the  lawful  tribunal  of  such  State,  the  votes  regu- 
larly  given  of  those  electors,  and  those  only,  of  such  State  shall  be 
counted  whose  title  as  electors  the  two  Houses,  acting  separately,  shall 
concurrently  decide  is  supported  by  the  decision  of  such  State  so  author- 
ized by  its  laws ;  and  in  such  case  of  more  than  one  return  or  paper  pur- 
porting to  be  a  return  from  a  State,  if  there  shall  have  been  no  such 
determination  of  the  question  in  the  State  aforesaid,  then  those  votes, 
and  those  only,  shall  be  counted  which  the  two  Houses  shall  concurrently 
decide  were  cast  by  lawful  electors  appointed  in  accordance  with  the 
laws  of  the  State,  unless  the  two  Houses,  acting  separately,  shall  concur- 
rently decide  such  votes  not  to  be  the  lawful  votes  of  the  legally  ap- 
pointed electors  of  such  State.    But  if  the  two  Houses  shall  disagree  in 
respect  of  the  counting  of  such  votes,  then,  and  in  that  case,  the  votes  of 
the  electors  whose  appointment  shall  have  been  certified  by  the  execu- 
tive of  the  State,  under  the  seal  thereof,  shall  be  counted.    When  the 
two  Houses  have  voted,  they  shall  immediately  again  meet,  and  the  pre- 
siding oflicer  shall  then  announce  the  decision  of  the  questions  sub- 
mitted.   No  votes  or  papers  from  any  other  State  shall  be  acted  upon 
until  the  objections  previously  made  t'    the  votes  or  papers  from  any 
State  shall  have  been  finally  disposed  of. 

Sec.  5.  That  while  the  two  Houses  shall  be  in  meeting  as  .provided 
in  this  act  the  President  of  the  Senate  shall  have  power  to  preserve 
order ;  and  no  debate  shall  be  allowed  and  no  question  shall  be  put  by 
the  presiding  oflicer  except  to  either  House  on  a  motion  to  withdraw. 

Sec.  6.  That  when  the  two  Houses  separate  to  decide  upon  an  objec- 
tion that  may  have  been  made  to  the  counting  of  any  electoral  vote  or 
votes  from  any  State,  or  other  question  arising  in  the  matter,  each  Sena- 
tor and  Representative  may  speak  to  such  objection  or  question  five 
minutes  and  not  more  than  once ;  but  after  such  debate  shall  have  lasted 


556  APPENDIX. ^PRESIDENTIAL    ELECTIONS. 

two  hours  it  shall  be  the  doty  of  the  presiding  oflScer  of  each  House  to 
put  the  main  question  without  further  debate. 

Sec.  7.  That  at  such  joint  meeting  of  the  two  Houses  seats  shall  be 
provided  as  follows:  For  the  President  of  the  Senate,  the  Speaker's 
chair;  for  the  Speaker,  immediately  upon  his  left;  the  Senators,  in  the 
body  of  the  Hall  upon  the  right  of  the  presiding  officer ;  for  the  Repre- 
sentatives, in  the  body  of  the  Hall  not  provided  for  the  Senators;  for  the 
tellers,  Secretary  of  the  Senate,  and  Clerk  of  the  House  of  Representa- 
tives, at  the  Clerk's  desk ;  for  the  other  officers  of  the  two  Houses,  in  front 
of  the  Clerk's  desk  and  upon  each  side  of  the  Speaker's  platform.  Such 
joint  meeting  shall  not  be  dissolved  until  the  count  of  electoral  votes 
shall  be  completed  and  the  result  declared;  and  no  recess  shall  be  taken 
unless  a  question  shall  have  arisen  in  regard  to  counting  any  such  vot«s,  or 
otherwise  under  this  act,  in  which  case  it  shall  be  competent  for  either 
House,  acting  separately,  in  the  manner  herein  before  provided,  to  direct 
a  recess  of  such  House  not  beyond  the  next  calendar  day,  Sunday  ex- 
cepted, at  the  hour  of  ten  o'clock  in  the  forenoon.  But  if  the  counting 
of  the  electoral  votes  and  the  delaration  of  the  result  shall  not  have  been 
completed  before  the  fifth  calendar  day  next  after  such  first  meeting  of 
the  two  Houses,  no  further  or  other  receis  shall  be  takeu  by  either  House. 

Approved,  February  3, 1887. 

ACT  OF  OCTOBER  19,  1888. 
A»  Act  supplementary  to  an  act  approved  February  third,  eighteen  hundred  and 
eighty-seven,  entitled,  "  An  Act  to  fix  the  day  for  the  meeting  of  the  electors  of  Presi- 
dent and  Vice-President,  and  to  provide  for  and  regulate  the  counting  of  the  votes 
for  President  and  Vice-President,  and  the  decision  of  questions  arising  thereon." 

Be  it  enacted,  etc.,  That  the  certificates  and  lists  of  votes  for  President 
and  Vice-President  of  the  United  States,  mentioned  in  Chapter  one  of 
Title  three  of  the  Revised  Statutes  of  the  United  States,  and  in  the  act 
to  which  this  is  a  supplement,  shall  be  forwarded  in  the  manner  therein 
provided,  to  the  President  of  the  Senate  forthwith  after  the  second 
Monday  in  January,  on  which  the  electors  shall  give  their  votes. 

Sec.  2.  That  section  one  hundred  and  forty-one  of  the  Revised  Stat- 
utes of  the  United  States  is  hereby  so  amended  as  to  read  as  follows: 

"Sec.  141.  Whenever  a  certificate  of  votes  from  any  State  has  not 
been  received  at  the  seat  of  Government  on  the  fourth  Monday  of  the 
month  of  January  in  which  their  meeting  shall  have  been  held,  the 
Secretary  of  State  shall  send  a  special  messenger  to  the  district  judge 
in  whose  custody  one  certificate  of  the  votes  from  that  State  has  been 
lodged,  and  such  iudge  shall  forthwith  transmit  that  list  to  the  seat  of 
Government." 


APPi£I!iDI&. ££SLDJ£l{a&  tS57 


RESIDENCE. 

Honse  of  Eepresentatives,  42d  Congress,  2d  Session,  Keport 

No.  11. 


JOHN  CESSNA  VS.  BENJAMIN  F.  MEYERS. 
Fbbbitabt  7, 1872.— Laid  on  the  table  and  ordered  to  be  printed. 


Hr.  Hoar,  from  the  committee  on  elections,  made  the  following 

REPOKT: 

THB  COMMITTEB  ON  EliEOTIONS,  TO  WHOM  WAS  REFERRED  THE  MEM- 
ORIAL OP  JOHN  CESSNA,  CLAIMING  TO  BE  ADMITTED  TO  THE  SEAT 
FROM  THE  SIXTEENTH  CONGRESSIONAL  DISTRICT  OF  PENNSYLVANIA, 
RESPECTFULLY   REPORT: 

The  case  has  required  the  consideration  of  many  very  interesting  ques- 
tions of  law,  and  an  examination,  by  itself,  of  the  evidence  in  regard  to 
the  right  to  vote  of  each  of  several  hundred  persons.  The  committee 
have  given  it  patient  and  thorough  study. 

The  majority  for  the  sitting  member  according  to  the  returns,  when 
correctly  added,  is  fourteen.  The  contestant  has  shown  that  more  than 
fourteen  illegal  votes  were  cast  for  his  antagonist,  and  would  have  estab- 
lished his  claim  to  the  seat,  were  it  not  for  illegal  votes  which  were  cast 
for  the  contestant  himself,  the  evidence  of  which,  so  far  as  appears,  first 
came  to  his  knowledge  when  introduced  in  the  case.  The  questions  of 
law  which  have  arisen  are,  some  of  them,  exceedingly  doubtful,  and  there 
are  statements  of  the  law  in  the  reports  of  previous  cases  which  would  be 
quite  likely  to  induce  an  expectation  on  the  part  of  the  contestant  of  a 
different  result  in  the  whole  matter.  He  seems,  therefore,  to  have  been 
well  warranted  in  the  belief  that  his  duty  to  the  people  required  him  to 
claim  the  seat.  The  whole  case  has  been  conducted  with  entire  propriety 
on  both  sides. 

The  majority  for  the  sitting  member,  as  found  by  the  return  judges,  is 
fifteen.    There  is  a  mistake  in  the  footing,  and  one  should  be  deducted,^ 


558  APPENDIX. EESIDENCK. 

leaving  fourteen.  The  contestant  claims  that  three  hundred  and  twenty- 
eight  illegal  votes  were  cast  for  the  sitting  member;  that  two  lawful 
votes  which  were  cast  for  himself  were  not  counted,  and  that  eight  legal 
votes  which  were  offered  for  him  were  rejected.  The  sitting  member, 
joining  issue  on  these  allegations,  claims  also  that  three  hundred  and 
forty-one  votes  were  illegally  thrown  for  contestant.  Of  these  contestant 
admits  that  eighty-one  have  been  proved  to  be  illegal. 

The  provisions  of  the  constitution  of  Pennsylvania,  concerning  the 
qualification  of  voters,  are  as  follows : 

"Article  III,  Section  1.  In  elections  by  the  citizens  every  (white)  free- 
man of  the  age  of  twenty-one  years,  having  resided  in  this  State  one  year, 
and  in  the  election  district  where  he  offers  to  vote  ten  days  immediately 
preceding  such  election,  and  within  two  years  paid  a  State  or  coimty  tax 
which  shall  have  been  assessed  at  least  ten  days  before  the  election,  shall 
enjoy  the  rights  of  an  elector.  But  a  citizen  of  th«  United  States  who 
had  previously  been  a  qualified  voter  of  this  State,  and  removed  there- 
from and  returned,  and  who  shall  have  resided  in  the  election  district  and 
paid  taxes  as  aforesaid,  shall  be  entitled  to  vote  after  residing  in  the  State 
six  months:  Provided,  That  (white)  freemen  citizens  of  the  United  States 
between  the  ages  of  twenty-one  and  twenty-two  years,  and  having  resided 
in  the  State  one  year  and  in  the  election  district  ten  days  as  aforesaid, 
shall  be  entitled  to  vote,  although  they  shall  not  have  paid  taxes." 

The  contestant  claims,  first,  that  he  received  a  majority  of  the  votes  cast 
at  the  election  by  lawfully  qualified  voters;  and,  second,  that  the  votes  of 
certain  other  persons,  lawfully  qualified,  who  desired  to  vote  for  him, 
were  excluded,  either  from  the  box  or  the  count,  by  the  mistake  or  mis- 
conduct of  the  election  officers.  The  result  to  which  an  examination  of 
the  first  claim  has  brought  us  renders  it  needless  to  consider  the  second. 

The  questions  which  it  is  material  to  consider  relate  either  to  the  quali- 
fication  of  voters  under  the  clause  in  the  constitution  of  Pennsylvania 
just  cited,  or  to  the  rules  of  evidence  which  should  govern  the  House  in 
election  cases. 

Under  these  constitutional  provisions,  the  burden  of  proof,  when  either 
party  insists  that  a  vote  should  be  deducted  from  those  cast  and  returned 
for  his  competitor,  is  upon  that  party  to  show  that  the  person  whose  vote 
is  in  question  voted;  that  the  vote  was  for  the  competitor;  that  the  voter 
lacked  some  one  of  the  following  qualifications,  viz:  citizenship  of  the 
United  States;  the  age  of  twenty-one;  residence  in  the  election  district 
for  ten  days  just  previous  to  the  election ;  residence  in  the  State  one  year 
just  previous  to  the  election,  or  for  six  months,  if  previously  a  qualified 
voter ;  payment,  within  two  years,  of  a  State  or  county  tax,  assessed  at 
least  ten  days  before  the  election,  or,  in  lieu  thereof,  being  between 
twenty-one  and  twenty-two  years  old. 

It  is  claimed  by  the  contestant  that  a  considerable  number  of  those  who 
voted  for  his  competitor  lacked  the  qualification  of  residence  in  the  elec- 
tion district.  The  largest  number  to  whom  this  objection  applies  came 
into  the  election  district  for  the  purpose  of  working  upon  a  railroad  in 


APPENDIX. KESIDENCE.  559 

process  of  construction  therein,  were  employed  in  building  said  railroad, 
and  were  not  proved  to  have  formed  any  intention  to  reside  in  the  dis- 
trict after  its  completion.  The  length  of  time  which  the  completion  of 
the  road  would  be  likely  to  occupy  was  not  distinctly  proved,  but  it  was 
shown  that  persons  who  were  in  fact  at  work  upon  it  continued  in  the 
district  for  a  longer  period  than  eighteen  months.  The  committee  have 
carefully  considered  the  legal  question  which  is  thus  raised. 

The  word  "  residence  "  used  in  the  constitution  of  Pennsylvania  in  de- 
scribing the  qualification  of  voters  is  equivalent  to  "  domicile,"  not  in  the 
sense  in  which  a  man  may  have  a  commercial  domicile  or  residence  in 
one  country,  while  his  domicile  of  origin  and  of  allegiance  is  in  another, 
but  in  the  broadest  sense  of  the  term.  As  it  is  upon  the  meaning  of  this 
word  that  the  case  chiefly  turns,  it  will  be  well  to  consider  it  a  little  more 
fully. 

The  word  "  domicile,"  or  "  residence,"  as  used  in  law,  is  incapable  of 
exact  definition.  Inquiries  into  it  are  very  apt  to  be  confused  by  taking 
the  tests  which  have  been  found  satisfactory  in  some  cases  and  attempt- 
ing to  apply  them  as  inflexible  rules  in  all.  Probably  the  definition  which 
is  most  expressive  to  the  American  mind  is  that  a  man's  domicile  is 
"  where  he  has  his  home."  Two  or  three  rules,  however,  are  well  estab- 
lished. A  man  must  have  a  domicile  somewhere ;  a  domicile  once  gained 
remains  until  a  new  one  is  acquired ;  no  man  can  have  two  domiciles  at 
the  same  time.  With  these  exceptions,  it  will,  we  believe,  be  found  that 
nearly  every  rule  laid  down  on  the  subject  ia  the  books,  even  if  generally 
useful,  fails  to  be  of  universal  application,  and  would  be  opposed  to  the 
common  sense  of  mankind  if  extended  to  some  states  of  fact  that  may 
arise.  For  instance,  Vattel  defines  domicile  to  be  '■'^  a  fixed  residence  in 
any  place,  with  an  intention  of  always  staying  there."  On  this  Judge  Story 
(Conflict  of  Laws,  Sec.  43)  well  remarks:  "This  is  not  an  accurate  state- 
ment.  It  would  be  more  correct  to  say  that  that  place  is  properly  the 
domicile  of  a  person  in  which  his  habitation  is  fixed,  without  any  present 
intention  of  removing  therefrom."  But  certainly  Judge  Story's  definition 
is  not  much  better.  A  man's  domicile  remains  after  he  forms  the  inten- 
tion of  removing  therefrom,  and  sometimes  even  after  he  removes,  until 
he  gets  another.  A  man  may  acquire  a  domicile,  if  he  be  personally 
present  in  a  place  and  elect  that  as  his  home,  even  if  he  never  design  to 
remain  there  always,  but  design  at  the  end  of  some  short  time  to  remove 
and  acquire  another.  A  clergyman  of  the  Methodist  church  who  is  set- 
tled for  two  years  may  surely  make  his  home  for  two  years  with  his  flock, 
although  he  means,  at  the  end  of  that  period,  to  remove  and  gain  another. 
So  of  the  principle  upon  which  the  contestant  most  relies  in  the  present 
case. 

He  claims — and  many  expressions  can  be  found  used  by  commentators 
and  in  judicial  decisions  which  seem  to  support  the  claim — that  persona)^ 
presence  in  a  place  with  intent  to  remain  there  only  for  a  limited  time 
and  for  the  accomplishment  of  a  temporary  purpose,  and  to  depart  when 
that  purpose  is  accomplished,  will  not  constitute  a  residence.   This  is  true 


660 


APPENDIX. EESIDENOB. 


as  a  general  rule.  It  y  true  of  those  persons,  probably  the  greater  num^ 
ber,  who,  while  so  preiont  and  engaged  in  business,  have  some  other 
principal  seat  of  their  int  jresls  and  aflfections  elsewhere.  Most  men  have 
some  permanent  home,  the  claims  of  which  outweigh  those  of  a  place  of 
temporary  sojourn.  The  place  where  a  man's  property  is,  where  hia 
family  is,  the  place  to  which  he  goes  back  from  time  to  time  whenever 
no  temporary  occasion  calls  him  elsewhere,  the  domicile  of  his  origin, 
where  the  permanent  and  ordinary  business  of  his  life  is  conducted — that 
is  to  the  ordinary  man  the  placd  'jC  his  home.  But  we  are  now  dealing 
with  a  class  of  persons  who  bar')  no  property,  who  have  no  family,  or 
whose  family  moves  with  them  from  place  to  place,  who  have  no  place  to 
return  to  from  temporary  absences,  the  domicile  of  whose  origin  is  in 
another  country,  and  has  been  in  the  most  solemn  manner  renoimced, 
and  the  ordinary  business  of  whose  life  consists  in  successive  temporary 
employments  in  different  places. 

Suppose  a  man,  single,  with  no  property,  to  come  from  Ireland  and  be 
employed  all  his  life  on  railroads  or  other  like  works  in  different  places 
in  succession.  If  he  does  not  acquire  a  residence  he  can  never  become  a 
citizen,  because  he  never  would  reside  in  this  country  at  all.  It  seems  to 
us  that  to  such  persons  the  general  rule  above  stated  does  not  apply, 
where  a  man  who  has  no  interests  or  relations  in  life  which  afford  a  pre- 
sumption that  his  home  is  elsewhere,  comes  into  an  election  district  for 
the  purpose  of  working  on  a  railroad  for  a  definite  or  an  indefinite  period, 
being  without  family,  or  having  his  family  with  him,  expecting  that  the 
question  whether  he  shall  remain  or  go  elsewhere  is  to  depend  upon  the 
chances  of  his  obtaining  work,  having  abandoned  both  in  fact  and  in  in- 
tention all  former  residences,  and  intends  to  make  that  his  home  while 
his  work  lasts — that  will  constitute  his  residence,  both  for  the  purpose  of 
such  jurisdiction  over  him  as  residence  confers,  and  for  the  purpose  of 
exercising  his  privileges  as  a  citizen.  Of  course  the  intent  above  sup- 
posed must  be  in  good  faith,  and  an  intent  to  make  such  district  the  home 
for  all  purposes.  The  party's  intent  to  vote  in  the  district  where  he  is,  he 
knowing  all  the  time  that  his  home  is  elsewhere,  will  not  answer  the  law. 

The  rule  is  stated  by  Chief  Justice  Shaw,  in  Lyman  vs.  Fiske,  (5  Pick. 
234,)  as  follows:  "  It  is  difl^cult  to  give  an  exact  definition  of  habitancy. 
In  general  terms,  one  may  be  designated  as  an  inhabitant  of  that  place 
which  constitutes  the  principal  seat  of  his  residence,  of  his  business,  pur- 
suits, connections,  attachments,  and  of  his  political  and  municipal  rela- 
tions. It  is  manifest,  therefore,  that  it  embraces  the  fact  of  residence  at 
a  place  with  the  intent  to  regard  it  his  home.  The  act  and  the  intent 
must  occur,  and  the  intent  may  be  inferred  from  declarations  and  con- 
duct It  is  often  a  question  of  great  difficulty,  depending  upon  minute 
and  complicated  circumstances,  leaving  the  question  in  so  much  doubt 
that  a  slight  circumstance  may  turn  the  balance.  In  such  a  case  the  mere 
declaration  of  the  party,  made  in  good  faith,  of  his  election  to  make  the 
one  place  rather  than  the  other  his  home,  would  be  sofflcient  to  turn  the 
scale." 


APPENDIX. RESIDENCE.  561 

The  article  in  the  appendix  to  Yol.  4  of  Dr.  Lieher's  Encyclopjodia 
Americana,  title  Domicile,  written  by  Judge  Story,  is,  perhaps,  the  best 
treatise  on  this  subject  to  be  found.  He  says:  "In  a  strict  and  legal 
sense,  that  is  properly  the  domicile  of  a  person  where  he  has  fixed  his 
true,  permanent  home  and  principal  establishment,  and  to  which,  when- 
ever he  is  absent,  he  has  the  intention  of  returning."  It  is  often  a  mere 
question  of  intention.  If  a  person  has  actually  removed  to  another  place, 
with  an  intention  of  remaining  there  for  an  indefinite  time,  and  as  a  place 
of  present  domicile,  it  becomes  his  place  of  domicile,  notwithstanding 
he  may  have  a  floating  intention  to  go  back  at  some  future  period.  A 
fortiori  would  this  be  true  if  his  "  floating  intention ''  were  to  go  else- 
where in  future,  and  not  to  go  back,  as  in  such  case  the  abandonment  of 
his  former  home  would  be  complete. 

In  the  Allentown  election  case  (Brightly's  Lead.  Cases  on  Elections, 
475),  it  is  said :  "  Unmarried  men,  who  have  fully  severed  the  parental 
relation,  and  who  have  entered  the  world  to  labor  for  themselves,  usually 
acquire  a  residence  in  the  district  where  they  are  employed,  if  the  elec- 
tion officers  be  satisfied  they  are  honestly  there  pursuing  their  employ- 
ment, with  no  fixed  residence  elsewhere,  and  that  they  have  not  come 
into  the  district  as  '  colonizers,'  that  is,  for  the  mere  purpose  of  voting, 
and  going  elsewhere  as  soon  as  the  election  is  held.  The  unmarried  man 
who  seeks  employment  from  point  to  point,  as  opportunity  offers,  and 
who  has  severed  the  parental  relation,  becomes  a  laborer,  producing  for 
himself,  and  thus  adds  to  the  productive  wealth  of  the  community  in 
which  he  resides,  being  willing  not  only  to  enjoy  political  privileges,  but 
also  to  assume  and  discharge  political  and  civil  duties."  A  fortiori  would 
this  reasoning  apply  to  the  married  laborer  who  takes  his  family  with 
him. 

The  habits  of  our  people,  compared  with  many  other  nations,  are  migra- 
tory. To  persons,  especially  young  men,  in  many  most  useful  occupa- 
tions, the  choice  of  a  residence  is  often  experimental  and  temporary.  The 
home  is  chosen  with  intent  to  retain  it  until  the  opportunity  shall  offer  of 
a  better.  But  if  it  be  chosen  as  a  home,  and  not  as  a  mere  place  of  tem- 
porary sojourn,  to  which  some  other  place,  which  is  more  truly  the  prin- 
cipal seat  of  the  aff"ections  or  interests,  has  superior  claim,  we  see  not  why 
the  policy  of  the  law  should  not  attach  to  it  all  the  privileges  which  be. 
long  to  residence,  as  it  is  quite  clear  that  it  is  the  residence  in  the 
common  and  popular  acceptation  of  the  term. 

The  case  of  Barnes  vs.  Adams,  (3  Con.  El.  Cas.,  771,)  does  not,  when 
carefully  examined,  conflict  with  these  rules.  The  passage  cited  from 
that  case  is  not  a  statement  of  the  grounds  on  which  the  House  or  even 
the  committee  determined  the  case,  but  is  a  concession  to  the  party  against 
whom  it  was  decided.  It  therefore,  if  it  bore  the  meaning  contended  for, 
would  not  be  authority  in  future  cases.  But  the  language,  taken  together, 
it  seems  to  us,  means  only  that  going  into  an  election  precinct  for  a  tem- 
porary purpose,  with  the  intent  to  leave  it  when  that  purpose  is  accom- 
plished, no  other  intent  and  no  other  fact  appearing,  is  not  enough  to  gain 


662  APPENDIX. EESIDENOE. 

a  residence.    In  this  view,  it  is  not  in  conflict  with  the  opinion  here  ex- 
pressed. 

It  is  true  that,  as  was  remarked  in  the  outset,  a  former  residence  con- 
tinues until  a  new  one  is  gained.  But  in  determining  the  question 
whether  a  new  one  has  been  gained,  the  fact  that  everything  which  con- 
stituted the  old  one — dwelling  house,  personal  presence,  business  relations, 
intent  to  remain — has  been  abandoned  is  a  most  significant  fact 
5.  We  have,  then,  to  apply  these  principles  to  the  evidenc  in  the  case. 
The  contestant  claims  that  three  principal  classes  of  persons  who  voted 
for  the  sitting  member  were  disqualified  by  reason  of  non-residence,  viz : 
persons  who  came  into  the  district  for  the  purpose  of  working  on  the  rail- 
road; students  at  the  university,  who  came  from  other  districts  solely  for 
the  sake  of  pursuing  their  studies,  and  paupers  supported  in  a  poor-house 
common  to  all  the  districts  in  the  county,  who  came  to  the  poor-house 
from  another  district,  and  voted  in  the  district  where  it  is  situated. 

The  cases  of  the  railroad  laborers  and  contractors  should  be  disposed  of 
by  the  following  rules: 

Ist  Where  no  other  fact  appears  than  that  a  person,  otherwise  quali- 
fied, came  into  the  election  district  for  the  purpose  of  working  on  the 
railroad  for  an  indefinite  period,  or  imtil  it  should  b-  completed,  and 
voted  at  the  election,  it  may  or  may  not  be  true  that  his  residence  was  in 
the  district.  His  vote  having  been  accepted  by  the  election  officers,  and 
the  burden  being  on  the  other  side  to  show  that  they  erred,  we  are  not 
warranted  in  deducting  the  vote. 

2d.  Where,  in  addition,  it  appears  that  such  voter  had  no  dwelling 
house  elsewhere,  had  his  family  with  him,  and  himself  considered  the 
voting  place  as  his  home  until  his  work  on  th  railroad  should  be  over, 
we  consider  his  residence  in  the  district  affirmatively  established. 

3d.  On  the  other  hand,  where  it  appears  that  he  elected  to  retain  a 
home,  or  left  a  family  or  a  dwelling  place  elsewhere,  or  any  other  like 
circumstances  appear  negativing  a  residenc  in  the  voting  precinct,  the 
vote  should  be  deducted  from  the  candidate  for  whom  it  is  proved  to  have 
been  cast 

The  principles  applicable  to  the  students  are  not  dissimilar.  The  law, 
as  it  applies  to  this  class  of  persons,  is  fully  and  admirably  stated  by  the 
Supreme  Court  of  Massachusetts,  in  an  opinion  given  to  the  legislature, 
and  reported  in  5th  Metcalf,  and  which  is  cited  with  approbation  in  nearly 
all  the  subsequent  discussions  of  the  subject.  Under  the  rule  there  laid 
down,  the  fact  that  the  citizen  came  into  the  place  where  he  claims  a  resi- 
dence, for  the  sole  purpose  of  pursuing  his  studies  at  a  school  or  college 
there  situate,  and  has  no  design  of  remaining  there  after  his  studies  ter- 
minate, is  not  necessarily  inconsistent  with  a  legal  residence,  or  want  of 
legal  residence,  in  such  place.  This  is  to  be  determined  by  all  the  cir- 
cumstances of  each  case.  Among  such  circumstances,  the  intent  of  the 
party,  the  existence  or  absence  of  other  ties  or  interests  elsewhere,  the 
dwelling  place  of  the  parents,  or,  in  the  case  of  an  orphan  just  of  age,  of 
such  near  friends  as  he  had  been  accustomed  to  make  his  home  within 


APPENDIX. EE8IDENCE.  563 

his  minority,  would  of  course  be  of  the  highest  importance.  See  Putnam 
vs.  Johnson,  10  Mass.,  488. 

The  case  of  the  paupers  presents  greater  difficulty.  Under  the  laws  of 
Pennsylvania  it  is  conceded  they  may  be  entitled  to  vote.  In  several  con- 
tested election  cases  cited  by  the  contestant,  it  is  stated  by  the  committee 
that,  in  the  absenc  of  statute  regulations  on  the  subject,  a  pauper  abiding 
in  a  public  almshouse,  locally  situated  in  a  different  district  from  that 
where  h«»  dwells  when  he  becomes  a  pauper,  and  by  which  he  is  sup- 
ported, away  from  his  original  home,  does  not  thereby  change  hia  resi- 
dence, but  is  held  constructively  to  remain  at  bis  old  home. 

Monroe  vs.  Jackson,  2  Elect.  Cas.,  98. 

Covode  vs.  Foster,  Forty-first  Congress. 

Taylor  vs.  Reading,  Forty-first  Congress. 

And  there  are  some  strong  reasons  for  this  opinion.  The  pauper  is 
under  a  species  of  confinement.  He  must  submit  to  regulations  imposed 
by  others,  and  the  place  of  his  abode  may  be  changed  without  his  con- 
sent. Having  few  of  the  other  elements  which  ordinarily  make  up  a 
domicile,  the  element  of  choice  also,  in  his  case,  almost  wholly  disappears. 
There  are  also  serious  reasons  of  expediency  against  permitting  a  class 
of  persons  who  are  necessarily  so  dependent  upon  the  will  of  one  public 
officer  to  vote  in  a  town  or  district  in  whose  concerns  they  have  no  in- 
terest.  On  the  other  hand,  the  pauper's  right  to  vote  is  recognized  by 
law.  It  can  practically  very  seldom  be  exercised  except  in  the  near 
neighborhood  of  the  almshouse.  In  the  case  of  a  person  so  poor  and 
helpless  as  to  expect  to  be  a  life-long  inmate  of  the  poor  house,  it  is,  in 
every  sense  in  which  the  word  can  be  used,  really  and  truly  his  residence 
— his  home.  And  it  is  important  that  these  constitutional  provisions  as 
to  suffrage  should  be  carried  out  in  their  simplest  and  most  natural  sense, 
without  the  introduction  of  artificial  or  technical  constructions.  It  will, 
however,  be  unnecessary  to  determine  tliia  question,  as  will  hereafter 
appear. 


INDEX. 


A. 

ABANDONMENT,  Section, 

of  office,  temporary  departure  from,  no     •    •    •    •    •    •    .    254 

otomce 848 

ABOLITION, 

of  voting  precincts,  effect  of    ••••••••••.      44 

ACT  OF  CONGRESS, 

April  14,  1803 84,  85 

June  25,  1843 190, 191 

July  11,  1850 190 

February  19, 1851 429 

March  3, 1865 122, 124 

July  25, 1866 151, 153 

May  31, 1870 40, 43, 48, 137, 273 

July  14, 1870 80 

January  10, 1873 451 

February  18, 1875 80 

March  32,  1882 45 

March  2, 1887 448 

section  2018,  Revised  Statutes  ....•• 258 

section  5508,  Revised  Statutes 146 

sections  5511-5515,  Revised  Statutes 257 

section  5515,  Revised  Statutes 148, 144  600 

section  5520,  Revised  Statutes 148 

section  5522,  Revised  Statutes 143, 600 

enforcement  act,  constitutionality  of.     .••...  143. 144 

liability  of  State  officials  under 256, 257 

construction  of,  as  to  mode  of  proceeding 372 

such  acts  directory  only    ...••.•••..    873 

ADJOURNMENT, 

of  election 160,166 

ADVICE, 

of  friends,  no  defense  to  prosecution 609 

of  counsel 616, 617 


666  rMDBX. 

AFRICAN  DESCENT,                                                                           Section, 
persons  of,  may  be  naturalized 80 

ALIEN  (see  Naturalization), 

election  of  to  United  States  Senate,  void 348 

discharged  from  military  service 71 

AMENDMENT  TO  UNITED  STATES  CONSTITUTION, 

Fifteenth,  does  not  confer  the  right  of  suffrage 40 

confers  substantial  and  affirmative  right 40,  41 

limits  power  of  States  to  fix  qualifications  of  voters    .      36,  47 
Fourteenth,  does  not  confer  suffrage  upon  women    ...      63,  64 

does  not  confer  citizenship  upon  Indians 81 

AMENDMENTS, 

in  pleadings  in  contest  must  be  made  without  delay    .     .  441,  443 
APPOINTMENT, 

to  oflSce,  see  Officer. 

ATTORNEY  FOR  THE  UNITED  STATES, 

not  disqualified  to  hold  office  as  Representative  in  Congress  339a 

AUSTRALIAN  BALLOT  SYSTEM, 

origin  of  the  system  and  introduction  in  other  countries   .     .     691 

introduction  in  the  United  States 692 

provision  for  an  official  ballot 693 

directions  governing  printing  of  ballots 694 

size  and  style  and  arrangement  of  names  upon  the  ballots     .    695 
rule  where  one  candidate  is  named  for  same  office  by  two  or 

more  parties 696 

manner  of  nominating  candidates  and  filing  certificates  of 

nomination 697 

duty  of  Secretary  of  State  when  certificates  of  nomination  are 

filed  by  rival  factions  of  a  party 698 

the  limitation  of  the  right  to  have  ballots  printed  at  public 

expense  and  to  have  names  of  candidates  printed  thereoB, 

not  unconstitutional 699 

right  of  the  voter  to  vote  for  the  person  of  his  choice    .     .     .    700 
right  of  a  political  convention  to  delegate  authority  to  make 

nominations 701 

a  candidate  nominated  by  individual  electors  not  the  nominee 

of  a  political  party 702 

nomination  papers;  how  signed 703 

mass  conventions  not  prohibited  in  Minnesota 704 

provisions  of  the  statute  concerning  certificates  of  nomination 

mandatory  or  directory 705 

other  provisions  liberally  construed .    706 

what  constitutes  filing. of  certificate  of  nomination      .     .    •    707 


INDEX.  567 

AUSTRALIAN  BALLOT  SYSTEM  (continued),  Section, 

petitioners  may  proceed  by  mandamus  to  compel  oflScer  to 

certify  the  name  of  a  candidate 708 

effect  of  wrongful  certificate  as  to  a  part  of  the  candidates 

upon  the  ballot 708 

certificates  for  filling  vacancies 709 

printing  and  distribution  of  sample  ballots 710 

sample  ballots  voted  by  mistake;  effect  of 711 

appointment  of  judges,  clerks,  challengers  and  watchers   .     .  713 

voting  compartments 713 

act  of  voting;  how  accomplished 714 

provision  requiring  voter  to  prepare  ballot  in  voting  com- 
partment    715 

provision  requiring  initials  of  two  judges  of  opposite  parties 

upon  the  ballot  not  mandatory 716 

the  requirement  that  the  ballot  must  bear  the  initials  of  a 
judge  of  election  held  unconstitutional  in  Nevada     .     .     .717 

assistance  to  disabled  voters 718 

assistance,  how  rendered 719 

provisions  defining  manner  of  marking  ballot  generally  held 

to  be  mandatory 720 

use  of  distinguishing  marks 721 

effect  of  marks  accidentally  made 722 

effect  where  voter  writes  his  name  upon  the  ballot  ....  723 
general  principle  applicable  in  determining  whether  provis- 
ions are  mandatory  or  directory 724 

primary  elections  in  Kentucky  held  under  Australian  system  725 
separate  ballots  and  ballot-boxes  provided  for  women  in  some 

States 726 

general  provisions  for  the  prevention  of  fraud 727 

use  of  voting  machines  authorized  in  Michigan  and  New  York  728 

voting  machines;  how  constructed  and  operated      ....  729 

B. 

BALLOT  (see  Australian  Ballot  System), 

mistake  in  name  of  candidate  in •     •     •     .     .  213 

handling  by  candidate 214 

numbering 226 

correction  of  mistake  in  depositing 280-233 

election  ofiicers  have  no  power  over,  after  deposited     .     .     .  279 

application  for  recount  of 435 

as  evidence 471 

provisions  for  safe  keeping  must  be  strictly  followed    .     .     .  472 
proof  that  they  have  not  been  tampered  with      ....  473,  474 

caption  of,  as  prescribed  in  Missouri 549a 


568  INDEX. 

BALLOT  (continued),  Section, 

construction  of  statutes  requiring  preservation  of    ...     .    475 

recount • 476,477 

lose  their  character  as  primary  evidence  when 478 

loss  or  destruction  of,  secondary  evidence 479 

secondary  evidence,  Judge  Cooley's  views 480 

importance  of  rule  requiring  preservation  and  production  of 

identical 481 

inspection  of,  when  ordered 483 

correction  of  return  by  reference  to 483 

preservation  of  secrecy  of 488,  489 

voter  cannot  be  compelled  to  divulge  for  whom  he  voted  .  489-491 

this  rule  does  not  protect  illegal  voter 490-494 

voter  may  waive  his  privilege 492 

circumstantial  evidence  admissible 493 

rule  as  to  disposition  of  illegal  votes  in  the  absence  of  proof 

showing  for  whom  they  were  cast 495 

marked  in  violation  of  law,  inadmissible 498 

fraudulent 681 

regulation  as  to  size  and  form  of 681 

provisions  against  counting  misleading 690 

BALLOT-BOX. 

separate  State  and  Federal  boxes,  mode  of  voting     .    ,     .  173, 174 

irregularities  as  to 229 

separate,  for  State  and  Federal  officers 230-233 

separate,  for  women,  in  some  States 726 

BALLOTS,  IMPERFECT  (see  Australian  Ballot  System), 

incorrect  spelling  of  names  and  the  like 528 

may  be  explained  by  parol  proof 529 

the  true  rule  upon  the  subject 530 

ambiguous  ballot;  surrounding  circumstances  shown  to  ex- 
plain voter's  intent 530,  531 

illustrations 530 

the  rule  as  stated  by  Judge  Cooley 530 

ballots  containing  a  greater  number  of  names  than  there  are 

offices  to  be  filled 532,  533 

ballots  written  or  printed  on  several  pieces  of  paper     .     .     .     534 

ballots  marked  in  violation  of  statute 535, 536 

statutes  forbidding  distinguishing  marks,  when  mandatory   .    537 
effect  of  statute  regulating  size  and  form  of  ballot  ....    538 

what  is  a  "  distinguishing  mark  "  upon  a  ballot 539 

construction  of  statute  requiring  indorsement  upon  ballot  of 

name  of  office  voted  for 540 

ballot  may  be  bad  in  part  and  good  as  to  remainder      .     .     .    541 
repetition  of  name  of  candidate 543 


INDEX.  669 

BALLOTS,  IMPERFECT  (continued),  Section. 

distinction  between  ambiguous  and  void  ballots 543 

ballot  may  be  explained,  but  cannot  be  contradicted     .     .     .  543 

writing  prevails  over  print 543 

rule  as  to  admissibility  of  evidence  alitmde  to  explain  ballot  .  544 

courts  not  bound  by  rules  which  govern  canvassers  ....  545 

illustrations 546 

the  term  "  written  "  includes  what  is  printed 547 

constitutionality  of  statutes  requiring  ballots  to  be  numbered  548 
substantial  compliance  with  statute  as  to  form  of  ballot  suffi- 
cient         ...  549 

BETTING, 

upon  result  of  election 218, 219 

BOARD,  ELECTION, 

fraudulent  organizati(Mi  of .••    171 

BRIBERY, 

in  elections 215-217 

offer  in  nature  of,  by  candidate 833 

c. 

CANVASS, 

partial,  insufficient •...  272 

in  accordance  with  returns,  may  be  compelled 412 

by  city  council,  prima  facie  evidence 501 

presence  of  unauthorized  persons  at 580 

CANVASSERS, 

may  be  compelled  by  mandamus  to  determine  and  certify  re- 
sult       384,385 

decision  of,  conclusive  in  collateral  proceeding    .    •    .     .     .    417 

CANVASSING  BOARD, 

bound  by  returns 263-266 

after  adjournment  cannot  generally  recount  vote    .    .     .  267, 268 
but  may  be  compelled  to  complete  canvass 269, 270 

CANVASSING  OFFICER, 

duty  of • 260 

CAPTION  OF  BALLOT, 

as  prescribed  in  Missouri •..  549a 

CENSUS, 

of  population ••••••.  463 

CERTIFICATE  OF  ELECTION, 

facts  which  it  may  contain ••••.  278 

person  holding,  allowed  to  act  pending  contest 302 

form  of 803 

of  majority  of  certifying  board  suffioient •    •  804 


570  INDEX. 

CERTIFICATE  OF  ELECTION  (continued),  Section. 

who  may  issue 306 

prima  facie  evidence  of  title  to  oflBce 304,  306 

confers  vested  right,  but  does  not  oust  jurisdiction  of  proper 

tribunal 806,308 

when  none  issued  to  either  claimant,  power  of  House  of  Rep- 
resentatives    309-313 

based  upon  partial  canvass,  effect  of 814 

cannot  be  impeached  collaterally 816 

effect  of  showing  only  partial  canvass 314 

cannot  be  collaterally  attacked 814,  816 

further  discussion  as  to  effect  of 818-321 

may  contain  matters  which  destroy  its  chairacter  as  prima 

facie  evidence  of  election 331 

prima  facie  evidence  only 874 

issued  under  mandamus  not  conclusive 418,  419 

of  particular  person,  not  generally  compelled 421 

duty  of  certifying  officer ••..    249 

CHANGE 

of  residence 94^  95, 96, 100 

CHINESE, 

not  entitled  to  naturalization •••      80 

CITIZENSHIP  (see  NaturalizationX 

meaning  of 66, 67,  68 

distinction  between  citizen  and  inhabitant 68 

rights  of  inhabitants  of  acquired  territory 69 

necessary  to  right  to  vote 346 

certain  Indians  citizens •••  81 

CIVIL  LIABILITY  (see  Election  Officebs). 

COLOR  OF  AUTHORITY, 

defined 253 

COMMISSION, 

power  of  Governor  to  revoke  .......•••.    802 

COMPROMISE, 

by  parties  to  contest,  not  allowed      .........    454 

CONFLICT  OF  AUTHORITY, 

State  and  Federal 866 

CONGRESS  (see  Act  of  Congress), 
organization  of,  see  Appendix 

limitations  of  power  of 89,  40 

power  of  over  qualifications  of  voters 89-43 

over  Federal  elections 43 

to  supplement  State  legislation 42 


DTDEX.  571 

CONGRESS  (continued),  Section. 

power  to  punish  frauds  in  Federal  elections    ......      43 

to  legislate  for  Territories 45 

cannot  compel  State  courts  to  naturalize  foreigners      ...      74 
may  adopt  or  alter  State  regulations  in  Federal  elections  .  142, 143 

implied  power 145 

to  regulate  Federal  elections 142-144 

over  such  elections 145, 146 

power  of,  to  require  election  of  members  by  districts    .     .  191, 192 

credentials  of  members  of 305 

power  of  House  when  no  certificate  has  been  issued  to  either 

claimant 809-313 

State  has  no  power  to  fix  qualifications  of  Representative  in    326 

member  of,  may  resign  without  notice  to  House 862 

canvass  of  votes  for  member  of,  may  be  compelled  by  manda- 
mus in  State  court 390 

State  laws  rules  of  decision  in 457, 461 

State  statute  regulating  elections  not  binding  upon      .     .     .     529 
decisions  of  State  tribunals  prima  facte  evidence    ....    580 
CONTEMPT, 

power  of  Legislature  to  punish  for 637 

not  general,  but  limited «...    640 

CONTESTANT, 

not  absolutely  necessary  to  contest 871 

CONTESTED  ELECTIONS  (see  Appendix;  Evidence;  Peoobd. 
ure;  Remedies;  Tribunals), 
parties  not  allowed  to  discontinue  or  compromise     ....    454 

interest  of  people  in 455 

continuances  not  generally  allowed 456 

CONTINUANCE, 

not  generally  allowed    ...••..•••••.    456 

CONTRACTS, 

tending  to  corrupt  elections    ...........    220 

CONVICTION  OF  CRIME, 

must  be  shown  by  record  of  trial  and  conviction  by  compe- 
tent court      123,124344,345 

effect  of 332 

CORPORATE  ELECTIONS, 

corporations  governed  by  stockholders 641 

each  shareholder  entitled  to  one  vote  for  each  of  his  shares  of 

stock  unless  otherwise  provided •  .  642 

qualifications  for  voting  in  a  corporation    .....     ^     .  643 

interest  of  stockholder  in  general  no  disqualification     .     .     .  643 


672  INDEX. 

CORPORATE  ELECTIONS  (continued),  Section. 

limitation  of  this  rule 643 

rights  of  stockholders 644 

equitable  assignment  of  stock 645 

right  to  vote  not  limited  to  natural  persons 645 

qualification  of  rule  that  legal  holder  of  shares  may  vote  upon 

them 646 

corporate  transfer  book  as  evidence  of  title 647, 648 

rights  and  duties  of  persons  holding  stock  as  trustees  .     .     .    649 

contract  of  membership,  when  complete 650 

mode  of  conducting  stockholders'  meetings 651 

notice 653 

how  given 653 

may  be  by  statute,  charter,  by-laws  or  standing  rules,  as  well 

as  by  publication 653, 654 

mandamus  to  compel  calling  of  election 654, 655 

election  must  be  held  at  reasonable  time  and  place  ....    656 

adjournment 657 

validity  of  corporate  meeting  held  beyond  borders  of  State 

creating  the  corporation 658, 659 

voting  by  proxy  unknown  at  common  law      ...•«.    660 

but  now  generally  recognized ,     .    660 

conduct  of  corporate  election 661, 662 

illegal  voting 663 

cumulative  voting 664 

cannot  be  forced  upon  corporations  after  their  organiza- 
tion     664,667 

election  of  directors 665 

right  to  vote  for  less  than  whole  number 665, 666 

votes  for  disqualified  or  ineligible  candidate 668 

failure  to  elect  officers  at  proper  time 669 

tenure  of  officers  of  corporation   .     .     .     •     • 670 

holding  over •..•.    670 

remedies  for  illegal  corporate  elections  ..••••••    671 

CORRECTION, 

of  final  return  by  reference  to  primary  returns 613 

CORRUPTION, 

use  of  money  to  influence  elections  .••.•••.  213, 214 

bribery 215,216 

contracts  tending  to  corrupt  elections  •••••••.    220 

COSTS, 

in  contests  ..•••••••••••••••    468 

COUNT, 

of  votes  without  delay 678,  679 


INDEX.  5T3 

COURTS,                                                                                                        Section, 
jurisdiction  of,  over  contested  election,  in  absence  of  special 
provisions , 381 

CREDENTIALS  (see  Cebtifioatb), 

effect  of 802 

form  of 803 

of  members  of  Congress 305 

who  may  issue 306 

CRIME, 

effect  of  conviction  of 333 

commission  of,  how  shown 123,  124^  844,  345 

does  not  ipso  facto  vacate  oflSoe 354 

CROWDING, 

polls,  evils  of 674 

statute  of  Kansas  to  prevent 684 

CUMULATIVE  VOTING, 

minority  representation  and 212 

in  corporate  elections 674 

cannot  be  forced  upon  corporations  after  their  organization  674677 

D. 

DAMAGES, 

exemplary,  when  allowed  against  election  oflScers    ....    801 

when  not  allowed  for  refusal  to  induct  into  ofice    ....  806a 
DEAF  MUTES, 

may  vote  under  law  providing  for  viva  voce  voting       ...    117 
DEATH  OF  CANDIDATE, 

how  affecting  election    .•.•••.•••...  881o 
DEATH  OF  CONTESTEE, 

status  of  successor ••••.  466a 

DECLARATIONS, 

of  illegal  voters  as  to  how  they  voted .  483-494 

conflict  of  authority  as  to  their  admissibility 484 

discussion  of  question  in  House  of  Representatives  .     .     .  485-487 
DEFAULT, 

no  judgment  by,  in  the  United  States  House  of  Representa- 
tives     446,447 

DESERTION, 

from  military  service,  validity  and  effect  of  act  of  Congress  of 

March  3, 1865 122 

DEVICE  ON  BALLOT, 

when  prohibited  vitiates  ballot    ••••••.•«.  689a 


574  INDEX. 

DIRECTORS,  Section, 

election  of  corporate  ..............    665 

right  to  vote  for  less  than  whole  number 665, 666 

votes  for  disqualified  candidate 668 

DIRECTORY, 

what  provisions  of  statute  are 335-228 

DISABLED  VOTER, 

assistance  furnished  to ••...    718 

how  rendered ..•,..    719 

DISCRETION, 

of  election  officers 294-296 

DISCRIMINATION, 

on  account  of  race,  color,  or  previous  condition  of  servitude, 
forbidden •.,.      40 

DISFRANCHISEMENT, 

as  a  punishment  for  crime 118 

DISQUALIFICATION, 

disfranchisement  as  a  punishment  for  crime  not  cruel  or  un- 
usual   118 

infamous  crimes 119-131 

dueling 119,120 

sending  or  accepting  a  challenge  to  fight  a  duel  ....  119, 130 
effect  of  sentence  of  fine  under  act  authorizing  fine  or  im- 
prisonment in  the  penitentiary 130 

conflicting  decisions 130 

discussion  as  to  meaning  of  "  infamous  crime  " 131 

decisions  of  the  United  States  Supreme  Court 131 

desertion  from  military  service 133 

effect  of  act  of  Congress  of  March  8,  1865 133 

judgment  of  a  court  of  competent  jurisdiction  after  trial  nec- 
essary   133 

the  question  is  judicial  and  must  be  decided  by  the  courts    .     134 
record  of  conviction  must  be  produced  before  election  officers    134 

effect  of  pardon 135 

knowledge  of 587,  588 

DISTRICTS, 

effect  of  change  of •••...      47 

power  of  Congress  to  require  election  by    .     .     ,     ,     .     .  191,  193 

DUELING, 

sending  or  accepting  a  challenge 119,  130 

under  Constitution  of  Kentucky 844 


DTDEX.  675 


E. 


ELECTION  DISTRICTS  (see  District^).  Section. 

ELECTIONS  (see  Contested  Elections;  Corporate  Elections; 
Evidence;  Procedure;  Remedies;  Tribunals). 

ELECTIONS,  FEDERAL, 

qualifications  of  voters  same  as  for  State  elections  ....      86 

power  of  Congress  over 43 

to  punish  violations  of  State  laws    ...••..     .      43 

to  adopt  or  alter  State  regulations 142,  143 

express  and  implied  power  of  Congress  over 142-146 

ELECTION  OFFICERS, 

bound  by  certificate  of  naturalization 77 

acting  clerk  a  candidate 228 

have  no  authority  over  ballots  once  deposited      .....     234 

mistakes  of,  not  to  prejudice  voters 235-239 

effect  of  violence  towards 241 

effect  of  reckless  disregard  of  law  by 242 

validity  of  acts  of  oflScers  de  facto 247-252 

color  of  authority  defined 253 

•    temporary  departure  of  oflScer,  no  abandonment      ....     254 

the  oflBce  must  lawfully  exist 255 

State  and  Federal  officials  may  act  at  same  election  .  .  .  256 
paramount  authority  of  latter  with  respect  to  Federal  elections  257 
liability  of  State  officials  under  act  of  Congress  in  certain 

cases 256,257 

election  offiscers  not  to  be  interfered  with 258 

duties  of  certifying  officer , 259 

canvassing  officer 260 

what  are  ministerial 261 

canvassers  can  receive  no  evidence  outside  of  returns  unless 

expressly  authorized  by  law 262-266 

have  in  general  no  power  after  adjournment  to  reconvene  and 

recount  vote 267,268 

but  may  be  compelled  by  mandarwus  to  re-assemble  and  com- 
plete their  work  in  certain  cases 269,  270 

amending  return  under  statute  of  Massachusetts      ....    271 

partial  canvass  not  sufficient 272 

Governor  of  State  not  an  election  officer  within  meaning  of 

the  act  of  Congress  of  May  31,  1870 273 

law  presumes  validity  of  official  acts  of  an  election  officer  .  274 
adjournment  of  an  election  by  order  of  proper  officer  presumed 

to  be  valid 274,  275 

no  right  to  organize  independent  or  outside  polls     ....    276 


576  INDEX. 

ELECTION  OFFICERS  (continued),  Seetton. 

effect  of  division  of  election  precinct 277 

facts  which  may  be  certified 278 

no  power  over  ballot  after  same  is  deposited 279 

duty  of  town  clerk  under  law  of  New  Hampshire    ....    280 

opening  and  closing  polls 281 

time  within  which  oflBcial  act  shall  be  performed  ....  282 
provisions  as  to  mode  and  manner  generally  directory  .     .     .    283 

number  of  voting  places 284 

fraudulent  refusal  to  establish  voting  places 285,  286 

when  judges  may  refuse  to  administer  oath  to  voter  .  .  .  287 
failure  to  appoint  inspectors  of  election  within  time  required    288 

civil  liability 289-301 

wilful  and  corrupt  denial  of  right  of  voter 289 

in  what  cases  malice  must  be  shown 289 

rule  in  Massachusetts  and  Ohio 289,  290 

rule  in  Pennsylvania 291 

rule  where  duty  is  gitasi- judicial 292 

honest  mistake  by  registering  officer 293,  294 

statutes  prescribing  specific  duties  must  be  obeyed  .  .  .  295-297 
duly  of  election  board  where  voter  offers  to  take  statutory 

oath 295,296 

what  will  amount  to  seasonably  placing  voter's  name  upon  the 

list '. 297 

duty  of  voter  to  furnish  evidence  of  his  right 298 

statements  of  voter  as  to  his  place  of  residence  maybe  proven    298 

malice  not  presumed 299 

evidence  that  officers  of  election  knew  that  plaintiff  differed 

from  them  in  his  political  sentiments 800 

exemplary  damages,  when  allowed 801 

effect  of  entire  disregard  of  law 510, 511 

evidence  of  appointment  of  inspectors  of  election    ....    512 

failure  to  make  return 522 

proof  that  they  were  not  sworn 525 

not  necessary  to  show  intentional  vrrong  on  part  of,  in  reject- 
ing vote 527 

fraud  by 674 

not  necessary  to  show  participation  by,  in  fraud,  in  order  to 

impeach  result 578 

what  acts  of,  will  constitute  fraud 579 

liability  for  fraudulently  appointing  illiterate  inspector  .  .  599 
distinction  between  ministerial  and  gtiasi-judicial  powers  of  600 
not  liable  for  mistake  of  judgment  in  Pennsylvania    ...    611 

non-partisan  boards 677 

presence  of  witnesses 677 

counting  votes  without  delay 678,  679 


INDEX.  577 

ELECTIVE   FRANCHISE   (see   Appendix;   Suffrage;  Sover- 
eignty), Section. 
power  of  the  States  and  of  the  United  States  to  fix  qiialifica- 

tions 36 

power  of  the  State  limited  by  the  Fifteenth  Amendment  to 

the  Constitution  of  the  United  States 36 

State  regulations  followed  by  Federal  government  ....      37 
except  such  as  conflict  with  Federal  Constitution  or  laws      .      87 

qualifications  of  voters  for  Presidential  electors 38 

nature  and  extent  of  power  of  Congress  over  suffrage      .     .      89 

rights  conferred  by  Fifteenth  Amendment 40,  41 

power  of  Congress  thereunder 40,  41 

decisions  of  United  States  Supreme  Court 42 

regulation  of  Federal  elections,  power  of  Congress  ....      42 
punishment  of  fraud  in  Federal  elections   ......      43, 44 

regulation  of  Territorial  elections 45 

nature  of  right  of  suffrage  and  whence  derived   ....  1-10,  46 
Legislature  cannot  add  to  or  alter  constitutional  qualifica- 
tions      47 

change  of  election  districts 47 

right  to  representation  in  government  cannot  be  impaired  or 

taken  away 48,  49,  51,  52 

voter  may  be  questioned  as  to  qualifications 50 

validity  of  acts  prescribing  test  oaths 52-56 

act  authorizing  Governor  to  impair  right  of  suffrage,  void    .      57 

regulations  must  be  reasonable 58 

distinction  between  regulation  and  impairment  of  the  right 

to  vote 58-62 

casting  vote  in  case  of  tie 62 

right  may  be  limited  to  male  citizens 63 

but  may  by  constitutional  provision,  or  sometimes  by  legis- 
lative act,  be  extended  to  females 63 

but  only  upon  the  same  terms  and  conditions  as  are  applied 

to  males 63 

construction  of  Fourteenth  Amendment  to  the  Constitution 

of  the  United  States 64 

what  questions  may  be  submitted  to  popular  vote    ....    197 

local  option •..    201 

plurality  generally  sufficient  to  elect 206-208 

meaning  of  "a  majority  of  the  voters  of  a  county"     .     .     .    208 

and  of  "  the  qualified  voters  therein  " 209 

deciding  tie  vote  by  lot 210,  211 

minority  representation  and  cumulative  voting  .    .    •    •    •    212 

ELECTORS  (see  Voters). 
87 


578  INDEX. 

ELECTORS,  PRESIDENTIAL,  Section. 

qualifications  of  voters  for,  fixed  by  States 36, 38 

mode  of  choosing 38 

ELIGIBILITY, 

to  oflfice,  see  Office. 

certificate  of  election  not  conclusive  as  to      .    •    .    .     .  818,  319 

qualifications  for  Federal  oflSces 322 

qualifications  for  State  offices 322,  823 

qualifications  of  Representatives  in  Congress 324 

meaning  of  the  term  "inhabitant,"  as  xised  in  the  United 

States  Constitution 324 

residing  abroad  as  representative  of  the  government  of  the 

United  States 325 

a  State  has  no  power  to  fix  qualifications  of  Representatives 

in  Congress 326 

effect  of  votes  cast  for  ineligible  candidate 327-331 

the  English  rule 328 

not  generally  adopted  in  this  country 828-330 

decision  of  United  States  Senate 331 

effect  of  conviction  for  crime 333 

effect  of  an  offer  by  candidate  for  office  in  the  nature  of  a 

bribe 333 

effect  of  absence  while  engaged  in  discharge  of  duties  of  pub- 
lic office 334 

holding  an  incompatible  office 835 

incompatibility  defined 835, 336 

holding  an  office  under  the  United  States 337 

effect  of  acceptance  of  commission  in  military  service  upon 

tenure  of  member  of  Congress 338 

effect  of  same  in  case  of  member  of  Congress  elected  but  not 

sworn  in 338,339 

acceptance  of  incompatible  office  equivalent  to  resignation   .    840 

lucrative  office 841 

character  of  residence  required •     .    843 

election  of  alien  to  United  States  Senate  entirely  void       .     .    843 

dueling  under  Constitution  of  Kentucky 344 

conviction  necessary  to  disqualify 844,  345 

citizenship  necessary  whether  expressly  so  provided  or  not  .  346 
Legislature  cannot  add  to  constitutional  qualifications  .  .  347 
vacancy,  when  judicial  declaration  of  is  necessary  .     .     .  856-358 

cannot  be  anticipated 359 

in  office  of  United  States  Senate 360 

filling  such  by  executive  appointment 361 

member  of  Congress  may  resign  withoutj  notice  to  the 
House 363 


INDEX.  579 

ELIGIBILITY  (continued),  Section. 

declaration  of  by  Governor 363 

that  may  happen  "  during  recess  of  the  Senate  "...  364 
discussion  as  to  construction  of  article  2,  section  2,  clause  2, 

Constitution  of  the  United  States 364 

power  to  fill  generally 365 

construction  of  article  1,  section  3,  United  States  Consti- 
tution         365 

in  what  oases  Legislature  may  fill  offices 366 

right  of  incumbent  to  fees  and  emoluments 367 

in  this  country  appointment  or  election  creates  no  contract  for 

any  particular  period 368 

EMOLUMENTS, 

of  office,  right  to 367 

ENFORCEMENT  ACT, 

constitutionality  of •...  143, 144 

EQUITY, 

courts  of,  will  not  interfere  with  contested  election  case   .     .  817 

no  jurisdiction  to  enjoin  holding  of  election 886 

or  to  restrain  counting  of  illegal  votes 887 

but  may  restrain  the  receipt  of  illegal  votes 388 

will  not  restrain  recording  of  abstract  of  votes  on  the  ground 

of  fraud 889 

EVIDENCE, 

duty  of  voter  to  furnish,  as  to  his  right 298 

statements  of  voter  as  to  residence  admissible 298 

that  election  officers  knew  plaintiff  differed  from  them  in 

political  sentiments 300 

certificate  of  election  prima  facte  only 874 

extension  of  time  for  taking 452, 453 

ordinary  rules  of  evidence  apply  ......••..  459 

presumption  as  to  official  integrity 459 

record  evidence 460 

State  laws  rules  of  decision  in  Congress 461 

when  necessary  to  prove  number  of  qualified  electors  in  given 

territory 462 

census  of  population 463 

official  list  of  freeholders  under  Virginia  statute       ....  464 

land  books  of  the  county  under  same     ........  465 

official  list  of  registered  voters 466 

presumption  that  person  who  has  voted  was  qualified  ...  467 

want  of  naturalization,  how  established 468 

fraudulent  naturalization  papers •     •    •     «  468 

may  be  attacked  by  parol  evidence 469 


680  INDEX 

EVIDENCE  (continued),  Section. 

proof  of  non-residence 469 

registration  not  conclusive  of  right 470 

ballots  as  evidence 471 

provisions  for  safe  keeping  must  be  strictly  followed  .  .  472 
rule  as  to  proof  that  they  have  not  been  tampered  with  .  474 
construction  of  statute  requiring  preservation  of    .     .     .    475 

recount  of 476, 477 

lose  their  character  as  primary  evidence  when  ....  478 
loss  or  destruction  of  ballots,  secondary  evidence    .     ,     .     479 

Judge  Cooley's  views 480 

importance  of  rule  requiring  proof  of  preservation  and  pro- 
duction of  the  identical  ballots  cast 481 

inspection  of,  when  ordered 482 

correction  of  return  by  reference  to 482 

legality  presumed 466a 

declarations  of  illegal  voters  as  to  how  they  voted   .     ,     .  48^-494 
conflict  of  authority  as  to  their  admissibility      ....     484 

the  English  rule 484 

rule  in  New  York  and  Wisconsin 484 

decisions  in  other  States 484 

discussion  of  the  question  in  the  House  of  Representatives 

of  the  United  States 485-487 

preservation  of  secrecy  of  ballot 488, 489 

voter  cannot  be  compelled  to  divulge  for  whom  he  voted  489-491 
but  this  rule  does  not  protect  one  who  votes  illegally     492, 494 

voter  may  waive  his  privilege 492 

circumstantial  evidence  admissible 493 

rule  as  to  disposition  of  illegal  votes  in  the  absence  of  proof 

showing  for  whom  they  were  cast 495 

when  new  election  should  be  ordered 496 

consequence  of  neglect  to  furnish  proof  within  reach  of  party  497 
ballots  marked  in  violation  of  law  generally  admissible  .  .  498 
character  of  proof  required  to  vitiate  a  vote  received  and 

counted  by  the  election  board 499 

weight  to  be  given  to  decision  of  judges  of  election       .     ,     ,    500 

canvass  by  city  council  prima  facie  evidence 501 

general  rule  for  solving  questions  of  evidence  in  contested 

election  cases 502 

returns  and  election  papers  may  be  impeached  upon  quo  war- 
ranto    508 

parol  evidence  admissible  to  impeach 503 

tally  sheets,  if  required  by  law  to  be  kept,  admissible  in  evi- 
dence     504-506 

poll  books  prima /acie  evidence  only 507 

may  be  impeached  for  fraud  ...'.......     607 


INDEX.  581 

EVIDENCE  (continued),  Section. 

return  must  be  signed 508 

held  admissible  for  some  purposes,  though  unsigned,  if 

otherwise  proved 509 

effect  of  entire  disregard  of  the  law  by  election  oflBcers      .  510,  511 

proof  of  true  vote  by  secondary  evidence 513 

evidence  of  appointment  of  inspectors  of  election     ....    513 
correction  of  final  return  by  reference  to  primary  returns      .    513 

absence  of  oath  will  not  vitiate  return 514 

rule  as  to  setting  aside  return 515 

illustrations 515-517 

distinction  between  rejecting  return  and  setting  aside  elec- 
tion       518 

State  statute  regulating  elections  not  binding  upon  Congress     519 
but  decisions  of  State  tribunals  under  such  statutes  prima 

facie  evidence 520 

rule  as  to  proving  votes  when  return  has  been  rejected     .     .    521 
failure  of  the  officers  of  one  of  several  precincts  to  make  re- 
turn      522 

rule  as  to  rejection  of  entire  poll 523,  524 

proof  that  officers  of  election  were  not  sworn 525 

proof  of  alteration  of  return 526 

not  necessary  to  show  intentional  wrong  on  part  of  election 

officer  in  rejecting  vote 527 

rule  as  to  admissibility  of  evidence  aliunde  to  explain  ballot    544 

of  intimidation 566 

return,  if  free  from  fraud,  the  best  evidence 569, 570 

nature  of,  required  to  impeach  return 571 

character  of  parol  proof  which  may  be  admitted     ,     .     .  572,  573 

circumstantial,  tending  to  show  fraud 575 

effect  of  proof  of  fraud  which  does  not  change  result    .     .     ,    576 

check  list  as 577 

not  necessary  to  show  that  officers  participated  in  fraud   .    •    578 

aliunde  the  return 578 

effect  upon  return  of  proof  of  excess  of  votes       .....    583 

of  fraud,  circumstantial 583 

burden  of  proof  to  show  non-residence 618 

defendant's  statement  at  time  of  voting  not  admissible     .     .     619 
of  title  to  corporate  stock,  transfer  book    ......  647, 648 

R 

FEDERAL  ELECTION  (see  Appendix;  Elections), 
FEDERAL  GOVERNMENT, 
power  of,  see  CoNQREsa. 


682  INDEX. 

FEES,                                                                                                                    gectiotu 
of  office,  right  to 367 

FEMALE  SUFFRAGE, 

not  conferred  by  Fourteenth  Amendment  ...•••      68, 64 
but  right  to  may  be  given  by  State 64 

FIFTEENTH  AMENDMENT  (see  Amendment  to  United  States 

Constitution). 
FOREIGN  STATE, 

acquired,  organization  of,  necessary  to  valid  Federal  election 

in 244 

FOURTEENTH    AMENDMENT   (see   Amendment    to    Unitkd 
States  Constitution). 

FRANCHISE  (see  Elective  Franchise). 

FRAUD  (see  Impeachment;  Returns), 

in  Federal  elections,  may  be  punished  by  Congress  ....  48 

fraudulent  organization  of  election  board  .......  171 

poll  books  may  be  impeached  for 502 

fraudulent  return  must  fall  to  ground   ........  571 

by  officers  and  others 574 

circumstantial  evidence  tending  to  show 575 

which  does  not  change  result,  effect  of  proof  of 576 

not  necessary  to  show  that  officers  participated  in,  in  order  to 

impeach  return 578 

provisions  for  the  prevention  of ••...  727 

G. 

"GENERAL  ELECTION,'» 

meaning  of  phrase ••••••>  194, 195 

GOVERNMENT  OF  UNITED  STATES, 

power  of,  see  Congress. 

GOVERNOR, 

cannot  be  authorized  to  set  aside  registration      •    •    •    •    .      57 

of  State,  not  an  election  officer 273 

power  of,  to  revoke  commission •....     807 

contest  as  to  office  of 869 

jurisdiction  of  courts  over  ...•••«..••  882, 883 

H. 

"HEAD  OF  FAMILY," 

meaning  of       ..•.•••••••••••.     114 

"HOUSEKEEPER," 

meaning  of ••••.•..    114 


INDEX.  583 

I. 

INCOMPATIBILITY,  Section, 

in  offices 335-340 

IDEM  SONANS, 

doctrine  of 631,  note 

when  shifting  the  burden  of  proof  as  to  legality  of  count  .     .  682a 

IDIOTS, 

not  qualified  to  vote 115,  116 

ILLEGAL  VOTING  (see  Prosecution;  Returns). 

IMPEACHMENT  (see  Returns). 

INDIAN  RESERVATION, 

residence  on •••••••••      93, 93 

INDIANS, 

certain,  not  entitled  to  naturalization    ........      81 

certain,  entitled  to  naturalization     .••.«••.  81,  note 

INDICTMENT, 

for  illegal  voting,  requisites  of 603 

must  advise  defendant  definitely  of  nature  of  charge    .     .  604,  605 
not  always  sufficient  to  follow  words  of  statute  ....  606-614 

for  repeating 612 

must  state  where  illegal  vote  was  cast 614 

INFAMOUS  CRIMES, 

what  are 119-121 

INFORMATION, 

in  quo  warranto 425 

INHABITANTS, 

meaning  of  term ' 66,  324^  325 

INSPECTORS, 

cannot  withdraw  ballot  deposited  in  box  by  mistake    .    .     .    224 

evidence  of  appointment  of 512 

fraudulently  appointing  illiterate 599 

INTENTION, 

importance  of,  in  determining  question  of  residence      .     .  102, 103 

INTIMIDATION  (see  Violence), 

may  be  punished  by  Congress ••••    146 

pfotection  of  voters  against ••••••     680 

burden  of  proof  as  to  effect •••  560a 

IRREGULARITY  (see  Ballots;  Violence), 

irregular  reception  of  legal  votes       ....•••••  172 

return  of  votes  after  time  prescribed 201 

invalidity  of  partial  return       .......••.•  202 


58i  INDEX. 

IRREGULARITY  (continued),  Section. 

effect  of  irregular  transmittal  of  returns 203-205 

effect  of  irregularities 223-225 

numbering  ballots 226 

what  statutes  are  mandatory 227-229 

and  what  directory 227-229 

depositing  ballot  in  wrong  box 230-233 

voting  by  mistake  in  wrong  precinct 234 

adoption  of  erroneous  rule  by  oflScers  of  election  affecting 

class  of  voters 235 

voter  not  generally  prejudiced  by  errors  or  mistakes  of  elec- 
tion officers   236-239 

unconstitutional  police  regulations 240 

effect  of  violence  toward  election  officers 241 

effect  of  reckless  disregard  of  essential  requirements    .     .     .    242 
illustrations  of  rule  that  mere  irregularities  will  not  vitiate 

an  election 243 

holding  of  elections  in  Territory  acquired  from  foreign  gov- 
ernment    244 

holding  an  election  in  a  Territory  in  anticipation  of  admission 

into  the  Union 245 

formation  of  State  government  out  of  part  of  organized  Ter- 
ritory  246 

effect  upon  remainder 246 

rule  as  to  setting  aside  returns 515 

illustrations 515-517 

in  conducting  election,  no  defense  to  prosecution  for  violation 
of  election  law 601 

J. 

JUDGES, 

of  election,  weight  to  be  given  to  decisions  of 600 

JUDGMENT, 

of  court  necessary  to  disqualify  voter  on  account  of  crime    •    123 

JURISDICTION  (see  Contested  Elections), 

of  House  to  judge  of  election  of  member,  exclusive  ....    877 

of  special  tribunals 878 

of  courts,  in  absence  of  special  provision  of  law 881 

of  courts,  extends  to  contest  for  office  of  Governor  ....    882 
but  not  to  control  Governor  in  performance  of  official  funo* 

tions 883 

none  in  equity  to  enjoin  election 386 

in  quo  toarranto  not  ousted  by  statutory  right  of  contest  .     .    895 

JURY, 

trial  by,  not  allowed 891, 893 


DTDBX  585 

L. 

LEGISLATIVE  BODY,  Section, 

importance  of  established  rules  governing  organization  .  .  620 
members  holding  usual  credentials  entitled  to  participate  in 

organization 631 

temporary  organization 623 

statutory  regulations 623 

no  general  business  until  members  have  been  sworn     .     .     .     624 
power  of  Houses  of  Congress  over  election,  returns  and  qualifi- 
cations of  their  members 625 

powers  and  duties  of  clerk  of  lower  House  of  Congress  .  .  626 
division  of  legislative  body  which  ought  to  be  a  unit  .  .  .  637 
rule  for  determining  which  is  the  legal  organization  .  .  628,  629 
distinction  between  supreme  and  subordinate  legislative  bodies    628 

power  of  courts  over  the  latter 638 

important  case  in  Pennsylvania 628 

question  between  rival  bodies  each  claiming  to  be  Legislature    629 

decision  of  United  States  Senate 629-631 

power  of  legislative  body  to  preserve  order  and  decorum  .     .    633 

duty  of  presiding  officer 633 

power  of  Houses  of  Congress  over  their  members     ....    634 

expulsion 634,635 

jurisdiction  to  inquire  into  acts  done  before  election    .     .  635, 636 

power  to  punish  for  contempt 637 

power  over  witness  summoned  before  them 637,  638 

power  of  legislative  bodies  generally  over  witnesses      .     .     .    638 

refusal  of  witness  to  answer  questions 639 

act  of  Congress  of  January  24,  1857 639 

power  of  House  and  of  courts  under  said  act 639,  640 

power  of  legislative  body  to  punish  for  contempt  not  general, 

but  limited 640 

decision  of  the  Supreme  Court  of  the  United  States  in  Kil- 

bourne  v.  Thompson 640 

LEGISLATURE, 

may  regulate  but  not  impair  right  to  vote 44-48 

power  of,  to  require  voter  to  answer  as  to  qualifications    .     .      50 

cannot  add  to  constitutional  qualifications 847 

jurisdiction  of 870 

mode  of  proceeding  before 370 

when  exclusive  judge  of  election  of  member 380 

LIABILITY, 

civil,  of  election  officers 289-301 

LIST, 

seasonable  placing  of  voter's  name  on    •••••••.    397 

LOCAI^OPTION  LAWS, 

validity  of 198-300 


586  INDEX. 

LOT,  Scctton. 

deciding  tie  vote  by 210,  211 

LUNATICS, 

not  qualified  to  vote 115, 116 

M. 

MAJORITY, 

of  the  voters  of  a  county,  meaning  of 208 

of  the  qualified  voters  therein,  meaning  of 209 

MALICE, 

when  must  be  shown  to  render  election  officer  liable    .     .     .  289 

not  presumed 299 

MANDAMUS, 

may  be  used  to  compel  special  tribunals  to  act 879 

to  compel  canvassers  to  determine  and  certify  result    .     .  384,  385 
in  State  court  to  compel  canvass  of  votes  for  Representative 

in  Congress 390 

and  quo  warranto,  remedy  by 397, 400 

to  compel  keeping  of  office  at  county  seat 401 

not  granted  where  there  is  another  adequate  remedy   .     .  402,  403 

nor  to  oust  incumbent  of  office 404 

nor  to  control  performance  of  judicial  duties 405,  416 

nor  to  compel  recognition  of  person  adjudged  elected  .     .  406, 409 
will  lie  to  compel  discharge  of  ministerial  duties      .     ,     .  406-411 

and  to  compel  appointment  in  certain  cases 410 

also  to  compel  canvass  in  accordance  with  returns  ....     412 
no  answer  to  writ  to  show  that  returns  are  irregular    ...    413 

discretionary  with  court ....    414 

office  of  writ 415 

certificate  of  election  issued  under,  not  conclusive    .     .     .  418, 419 

will  lie  to  compel  registration  of  legal  voter 420 

but  not  generally  to  compel  certificate  of  election  ef  particu- 
lar person ...» 421 

general  rules  stated 422,  423 

to  compel  calling  of  corporate  election  ......(  654, 655 

MANDATORY, 

what  regulations  are ••..  125-129 

MANNER  (see  Registration), 

of  conducting  registration 139 

statutes  prescribing,  generally  directory 140 

of  conducting  election  of  Senators  in  Congress 150 

change  of  voting  place 158, 159 

adjournment  of  election 160, 166 

premature  closing  of  polls 161 

keeping  polls  open  after  lawful  hours 162-165 

persons  not  voting  generally  bound  by  result 167 


INDEX.  587 

MANNER  (continued),  Section. 

exceptions  to  this  rule 168-170 

fraudulent  organization  of  election  board  .......     171 

irregular  reception  of  legal  rotes 172 

mode  of  voting  where  separate  boxes  are  provided  by  law  for 

State  officers  and  members  of  Congress 173, 174 

Toting  by  proxy  unknown  at  common  law,  but  allowed  in  cer- 
tain corporate  elections 175 

of  conducting  special  elections 196 

provisions  as  to,  generally  directory 283 

MENTAL  CAPACITY, 

required  as  a  qualification  for  voting 115,116 

MILITARY, 

interference  by 652 

force,  surrounding  polls  by ••.     653 

stationing,  in  vicinity  of  election 554 

misconduct  of  soldiers  stationed  near  voting  place  ...  555-557 
calling  out,  on  election  day 558 

MILITARY  RESERVATION, 

residence  on •••••••      92^  93 

MILITIA, 

calling  out,  on  election  day 668 

MINISTER, 

effect  of  residence  abroad • 825 

MINISTERIAL  DUTIES, 

what  are •••••.    261 

MINOR, 

liability  of,  who  votes  believing  he  is  of  age 596 

status  of,  after  father's  declaration 856 

MINORITY  REPRESENTATION 212,  note 

MISCONDUCT  (see  Election  Officers). 

MISTAKE, 

correction  of 280-233 

voting  in  wrong  precinct • 234 

effect  of  honest,  by  registering  officer    .......  293, 294 

MODE  AND  MANNER  (see  Manner), 

provisions  as  to,  generally  directory 283 

MONEY, 

corrupt  use  of,  to  influence  election  .•••••••  21^  214 

N. 

NAMES, 

mistake  or  variation  in •••••••.    222 

incorrect  spelling  of 528 

surplusage  of 532,  533 


588  INDEX. 

NATURALIZATION,  Section. 

necessary  to  qualify  alien  to  vote 70 

summary  of  naturalization  laws ,,  71 

when  inferred 79a 

collective 85a 

of  minor  children  after  father's  declaration    ......  85b 

must  be  by  court  of  record 73 

State  courts  may  decline  to  naturalize  foreigners    ....  74 

application  must  be  made  in  open  court 75 

judgment  of,  final 76 

except  in  cases  of  fraud  or  want  of  jurisdiction 76 

certificate  of,  binding  upon  election  officers    ......  77 

when  oath  of  voter  admissible 78 

record  of,  what  to  contain 79 

Chinese  not  entitled  to 80 

persons  of  African  descent  may  be  naturalized 80 

who  may  be  naturalized 80 

rights  of  certain  Indians  to  citizenship  ........  81 

residence  required 83 

also  good  moral  character 83 

rights  of  minor  children  of  naturalized  parents  under  act  of 

Aprill4,1803 84,85 

rights  of  children  born  abroad  whose  parents  are  citizens      .  86 

want  of,  how  established 468 

fraudulent  papers  of 468 

may  be  attacked  by  parol  evidence 469 

fraudulent  naturalization  certificates 584 

voting  upon  void  certificate  of .  589, 590 

NAVY  YARD,  UNITED  STATES, 

residence  at 89 

non-residence,  proof  of ••••    469 

NOTICE, 

of  election,  may  be  required 58 

of  election 177-188 

when  prescribed,  is  necessary,  and  when  not 178-181 

distinction  as  to,  in  cases  of  general  and  special  elections  .  182-185 

in  contested  election  cases 426 

must  be  served  within  time  prescribed 427 

rule  for  computing  time 428 

specification  of  grounds  of  contest  in 429 

names  of  illegal  voters  need  not  be  stated 429 

proof  of  service  of 430 

of  stockholders'  meeting 652 

how  given 653 

by  statute,  etc. 653,654 


INDEX.  689 

NUMBERING,                                                                                                Bection. 
of  ballots 226 

o. 

OATH  (see  Test  Oath), 

when  judges  may  refuse  to  administer  to  voter  .....  287 
duty  of  board  where  voter  offers  to  take  statutory    .     .     .  395,  296 

when  its  administration  may  be  refused 306a 

absence  of,  will  not  vitiate  return 514 

proof  that  officers  of  election  were  not  sworn 525 

OFFER  TO  VOTE, 

when  constituting  a  vote 537a,  527& 

of  public  facilities,  not  a  bribe      ..........    216 

OFFICE, 

can  be  no  office  de  facto 255 

civil  liability  for  misconduct  in 289-301 

prima  facie  right  to 302-821 

importance  of  the  subject 802 

the  person  holding  ordinary  credentials  presumed  elected  and 

allowed  to  act  pending  contest 802 

credentials,  form  of 808 

certificate  of  majority  of  certifying  board  sufficient      .     .     .     804 

credentials  of  members  of  Congress 305 

who  may  issue 806 

certificate  ©f  election  confers  vested  right,  but  does  not  oust 

jurisdiction  ©f  proper  tribunal 806-308 

power  of  Governor  to  revoke  commission 307 

power  of  lower  House  of  Congress  when  no  certificate  has 

been  issued  to  either  claimant 309-818 

effect  of  certificate  showing  only  partial  canvass  ....  814 
certificate  of  election  cannot  be  collaterally  attacked  .  .  815,  816 
courts  of  equity  will  not  interfere  with  contested  election  case  317 
further  discussion  as  to  effect  of  certificate  of  election      .  818-321 

qualifications  for  Federal  offices 322 

qualifications  for  State  offices 822,  823 

qualifications  of  Representatives  in  Congress 824 

meaning  of  the  term  "inhabitant,"  as  used  in  the  United 

States  Constitution 824 

residing  abroad  as  representative  of  the  Government  of  the 

United  States 335 

State  has  no  power  to  fix  qualifications  of  Representatives  in 

Congress 326 

effect  of  votes  cast  for  ineligible  candidate 827-331 

the  English  rule 838 


590  INDEX. 

OFFICE  (continued),  Section. 

not  generally  adopted  in  this  country 328-330 

decision  of  United  States  Senate 331 

effect  of  conviction  for  crime 833 

effect  of  an  offer  by  candidate  for  office  in  the  nature  of  a 

bribe 833 

effect  of  absence  while  engaged  in  discharge  of  duties  of  pub- 
lic office    834 

holding  an  incompatible  office 335 

incompatibility  defined 835,  386 

holding  an  office  under  the  United  States 837 

effect  of  acceptance  of  commission  in  military  service  upon 

tenure  of  member  of  Congress 838 

effect  of  same  in  case  of  member  of  Congress  elected  but  not 

sworn  in 838,  339 

rule  as  to  incompatibility 840a 

acceptance  of  incompatible  office  equivalent  to  resignation    .    840 

lucrative  office 841 

character  of  residence  required 343 

election  of  alien  to  United  States  Senate  entirely  void  .     .     .    843 

dueling  under  the  Constitution  of  Kentucky 344 

conviction  necessary 844,  345 

citizenship  necessary  whether  expressly  so  provided  or  not     .     346 
Legislature  cannot  add  to  constitutional  qualifications      .     .     847 

abandonment  of  an  office 848 

holding  over  until  successor  is  chosen  and  qualified      .     .  349-351 

resignation,  acceptance  not  necessary 353 

tenure  during  good  behavior 853 

right  to  hearing  before  removal 354 

commission  of  crime  does  not  ipso  facto  vacate  office    .    .     .    854 

power  of  removal 355 

when  judicial  declaration  of  vacancy  is  necessary    .     .     .  85*-358 

vacancy  cannot  be  anticipated «...     859 

vacancy  in  office  of  United  States  Senator 360 

filling  such  vacancy  by  executive  appointment 361 

member  of  Congress  may  resign  without  notice  to  the  House    863 

declaration  of  vacancy  by  Governor 363 

vacancies  that  may  happen  "  during  recess  of  the  Senate  "     .    864 
discussion  as  to  construction  of  Article  3,  Section  3,  Clause  3, 

Constitution  of  the  United  States 364 

power  to  fill  vacancies  generally 365 

construction  of  Article  1,  Section  3,  United  States  Constitution    365 

in  what  cases  Legislature  may  fill  offices 366 

right  of  incumbent  to  fees  and  emoluments 867 

in  this  country  appointment  or  election  creates  no  contract  for 
any  partictdar  period 868 


INDEX.  691 

OFFICERS  (see  Election  Officers),  Section. 

de  facto,  validity  of  acts  of 247-253 

color  of  authority  defined 253 

temporary  departure  of  officer  no  abandonment 254 

the  office  must  lawfully  exist 255 

may  be  compelled  by  mandamus  to  keep  office  at  county  seat  401 

cannot  be  ousted  by  mandamus 404 

nor  controlled  in  performance  of  judicial  duties  ....  405,  416 

of  corporation,  tenure  of ••..  670 

holding  over ••••••  670 

P. 

PARDON, 

effect  of 125 

PAROL  PROOF, 

imperfect  ballot  may  be  explained  by ,     .  529,  830 

PAUPER, 

residence  of ,,  104 

PEOPLE, 

who  are  the  people 11 

declarations  upon  the  subject  contained  in  the  Declaration  of 

Independence  and  in  preambles  to  constitutions    ....  13 

the  theories  of  early  speakers  and  writers 18 

conclusion  from  the  foregoing 14 

arguments  of  counsel  in  Chisholm,  Ex'r,  v.  State  of  Georgia  .  15 
view  of  the  Supreme  Court  of  the  United  States  in  Penhal- 

low  V.  Doane's  Adm'rs 16 

doctrine  as  stated  by  Judge  Taney  in  Dred  Scott  v.  Sanford  .  17 
at  the  time  of  the  formation  of  the  Union  the  people  were 

the  citizens,  independent  of  age  or  sex 18 

how  did  the  Constitution  become  binding  upon  the  people     .  19 

the  theory  of  consent  by  ratification 20 

view  of  the  Supreme  Court  of  the  United  States  in  Inglis  v. 

Trustees  of  Sailor's  Snug  Harbor 21 

view  of  the  same  court  in  "Ware  v.  Hylton 33 

ttie  provisions  of  constitutions  binding  upon  all  citizens,  irre- 
spective of  age  or  sex 23 

in  the  United  States  the  right  of  suffrage  depends  upon  the 

will  of  the  people 10 

have  the  people,  by  constituting  the  electors,  surrendered 

the  sovereignty 24 

the  right  to  fix  the  qualifications  of  voters  is  in  the  people  of 
the  respective  States,  subject  to  limitation  contained  in  the 

Fifteenth  Amendment 31 

qualifications  of  electors  determined  by  the  people  in  constitu- 
tional conventions 33 


592  IITDEX. 

PEOPLE  (continued),  Section, 

power  of  the  people  to  limit  the  discretion  of  voters  in  the 

choice  of  persons  to  fill  oflSices 33 

inability  of  the  people  to  withdraw  political  power,  except  in 

the  manner  provided  by  Constitution 84 

PETITION, 

in  contest,  requisites  of  in  Ohio 434 

PLACE  OF  ELECTION, 

must  be  fixed  by  law 253 

is  of  the  substance 176 

change  of  voting  place 158, 159 

power  of  Governor  to  fix  place  of  election  for  Representatives 

in  Congress 186 

provisions  of  law  affecting,  generally  mandatory      .     .     .  228,  229 

corporate  election  must  be  held  at  reasonable 656 

where  meeting  is  held  beyond  borders  of  State    ....  658, 659 
multiplication  of  precincts 675 

PLEADINGS  (see  Procedure), 

requisites  of 484  ^6, 445 

PLURALITY, 

generally  sufficient  to  elect 206-208 

POLICE  REGULATIONS, 

effect  of  unconstitutional 240 

POLL  BOOKS, 

prima  facie  evidence  only 507 

POLLS, 

premature  closing 161 

keeping  open  after  lawful  hours  .........  162-165 

independent  or  outside,  illegal 276 

opening  and  closing 281 

rule  as  to  rejection  of  entire 628, 524 

evils  of  crowding 674 

provisions  against  crowding .    674 

POPULAR  VOTE, 

what  questions  may  be  submitted  to 197-200 

PRACTICE  (see  Procedure), 

usually  governed  by  local  statutory  regulations  or  rules  ©f 
legislative  bodies 424 

PRECINCTS, 

effect  of  abolition  of 44 

voting  in  wrong 234 

effect  of  division  of 277 

PRESIDENTIAL  ELECTIONS  (see  Appendix;  Electors). 

PRESUMPTION  (see  Evidence). 


INDEX.  593 

PROCEDURE,  Section. 

in  contest  before  legislative  body 370 

construction  of  acts  of  Congress  as  to 372 

such  acts  directory  only 373 

practice  usually  governed  by  local  statutory  regulations  or 

rules  of  legislative  bodies 424 

information  in  quo  warranto 425 

notice ,     426 

must  be  served  within  the  time  prescribed 428 

rule  for  computing  time 428 

specification  in  notice  of  grounds  of  contest 429 

names  of  illegal  voters  need  not  be  stated 429 

proof  of  service  of  notice 430 

statutes  providing  for  contesting  elections  to  be  liberally  con- 
strued   431 

the  claimant  must  set  forth  a  meritorious  case 432 

mode  of  verifying  grounds  of  contest 433 

requisites  of  petition  under  Ohio  statute 434 

application  for  recount  of  ballots 435 

statutory  mode  must  be  followed 436 

requisites  of  pleading 437-439 

certainty  to  common  intent  only  required 440 

amendments  must  be  made  without  delay 441-443 

pleadings  in  special  statutory  proceedings 444 

what  issues  may  be  tried 445 

no  judgment  by  default  in  the  United  States  House  of  Repre- 
sentatives       446,  447 

mode  of  proceeding  in  contested  election  cases  in  the  United 

States  House  of  Representatives 448-450 

importance  of  rule  requiring  sitting  member  to  proceed  with 

diligence 451 

extension  of  time  for  taking  of  testimony 452,  453 

parties  not  allowed  to  discontinue  or  compromise    ....     454 

where  contestee  dies 456a 

interest  of  the  people  in  contested  election  cases  .....    455 

continuances  not  generally  allowed 456 

State  law  followed  in  Congressional  contests 457 

costs 458 

PROOF  (see  Evidence), 

when  new  election  should  be  ordered 496 

within  reach  of  party,  consequences  of  neglect  to  furnish  .     .    497 

PROSECUTIONS, 

statutory  remedy  exclusive 585 

whether  the  crime  of  illegal  voting  can  be  punished  at  com- 
mon law,  query 585,  586 


594  INDEX. 

PROSECUTIONS  (continued),  Section. 

decision  of  the  question  in  Massachusetts 585 

ruling  in  Ohio 585 

conflict  of  authority  as  to  necessity  for  showing  that  defend- 
ant had  knowledge  of  his  disqualification     .....  587,  588 
liability  of  person  voting  upon  void  certificate  of  naturaliza- 
tion        589,590 

rule  where  qualification  of  voter  is  question  of  doubt  .  .  590-593 
what  constitutes  the  completed  act  of  illegal  voting  .  .  593,  594 
liability  of  minor  who  votes  believing  he  is  of  age  ....  595 
no  conviction  unless  election  was  authorized  by  law  .  .  596,  597 
construction  of  statute  punishing  the  offense  of  voting  "  with- 
out being  duly  qualified " 538 

character  of  question  decided  by  election  officer  to  be  consid- 
ered       599,600 

liability  for  fraudulently  appointing  illiterate  inspector  of 

election 599 

distinction  between  discretionary  and  gitasi-judicial  powers 

of  election  officers 600 

mere  irregularity  in  manner  of  conducting  election  no  defense    601 

advice  of  friends  cannot  be  shown  in  defense 603 

nor  can  a  favorable  decision  by  officers  of  election  upon  de- 
fendant's right  to  vote 602 

requisites  of  an  indictment  for  illegal  voting 603 

indictment  must  advise  defendant  definitely  as  to  nature  of 

charge  against  him 604,  605 

not  always  sufficient  to  follow  words  of  statute  ....  606,  607 

illustrations 606-614 

case  in  Tennessee 606 

in  general,  disqualifications  must  be  specified      ....  608,  613 
not  necessary  to  aver  that  election  was  held  by  the  proper 

officers ,     809 

nor  what  particular  officers  were  to  be  chosen  at  the  election    610 
officer  not  liable  for  mistake  of  judgment  under  statute  of 

Pennsylvania 611 

indictment  for  voting  more  than  once  at  same  election     .     .     613 

must  state  where  illegal  vote  was  cast 614 

presumption 615 

advice  of  counsel 616 

case  in  Massachusetts 617 

burden  of  proof  to  show  non-residence  is  upon  the  Common- 
wealth        618 

defendant's  statements  at  time  of  voting  not  admissible  in  evi- 
dence  619 

PROXY, 

voting  by,  unknown  at  common  law 660 

but  now  generally  recognized  in  corporate  elections     .     .     .     680 


INDEX.  595 

Q. 

Section. 

QUALIFICATIONS  OF  OFFICERS  (see  Election  Officers), 

Federal  officers 323 

State  officers 322,  323 

Representatives  in  Congress 324 

QUALIFICATIONS  OF  VOTERS  (see  Sovereignty), 

the  right  to  fix  the  qualifications  of  voters  is  in  the  people  of 
the  respective  States,  subject  to  limitation  contained  in  Fif- 
teenth Amendment 31 

qualification  of  electors  determined  by  the  people  in  constitu- 
tional conventions 33 

power  to  fix,  vested  in  States 36 

same  for  all  elections 49 

voters  may  be  required  by  law  to  answer  as  to 50 

usual,  enumerated 65 

meaning  of  word  "  inhabitants  " 66 

citizenship 66-68 

effect  of  Treaty  with  Mexico  upon  status  of  inhabitants  of  ac- 
quired Territory 69 

naturalization 70-83 

power  of  Congress  exclusive .      70 

summary  of  laws ••      71 

what  courts  may  grant .      73-74 

proceedings  in  court  required 75 

judgment  final 76 

how  fact  of,  may  be  proved 77-79 

who  may  be  naturalized 80, 81 

residence  required 83 

also  good  moral  character 83 

construction  of  act  of  Congress  of  April  14, 1803,  as  to  rights 

of  certain  minors 84, 85 

children  born  abroad  whose  parents  are  citizens 86 

residence  always  required 87 

defined 88 

at  United  States  navy  yard,  arsenal,  or  the  like  ...      89,  94 

ofsoldiei-s 90,91 

within  Indian  or  military  reservation 92, 93 

change  of 88,94,95 

temporary  removal  from 96, 100 

and  domicile  synonymous 97 

of  Students  at  college 101-103 

Importance  of  the  question  of  intention 108, 103 

paupers  abiding  in  a  public  almshouse 104 

the  intention  to  remain  at  a  particular  place      .     .     •     .     105 
rules  of  evidence 106 


696  INDEX. 

QUALIFICATIONS  OF  VOTERS  (continued),  Section. 

tax,  payment  of 107, 116,  note 

mode  of  assessing 108,109,112,113 

payment  by  agent 110 

persons  exempted  from  payment  of .111 

definition  of  phrase  '•  housekeepers  and  heads  of  families  "      .114 

mental  capacity  required 115, 116 

rule  in  Kentucky  as  to  deaf  mutes 117 

Legislature  cannot  add  to  constitutional 347 

presumption  that  voter  possessed 467 

want  of  naturalization,  how  established 468,  469 

weight  to  be  given  to  decisions  of  judges  of  election  .  .  .  500 
rule  where  doubt  as  to  voter's 590-592 

QUO  WARRANTO  (see  Remedies), 

common-law  jurisdiction 369 

when  issued  at  common  law 39;J 

mode  of  proceeding 394 

where  statutory  right  of  contest  exists 39> 

not  granted  merely  upon  showing  of  illegal  votes  received     .  393 

and  mandamus,  remedy  by 397-400 

information  in 425 

returns  may  be  impeached  upon 50J 

R. 

RECORD  (see  Evidence), 

of  naturalization,  what  to  contain 79 

RECOUNT, 

of  ballots,  application  for    ...     .    485,  435a,  435&,  435c,  476,  477 

REGISTRATION, 

laws  for,  constitutional 127-134 

laws  for,  may  operate  only  in  certain  cities  and  villages  .  .  128 
validity  of  laws  requiring  registration  prior  to  election  .  130-132 
provisions  of  registry  law  cannot  be  disregarded      ....     135 

denial  of  right  of 136-138 

mode  of  conducting 139 

notice 139 

change  of  place  of 139 

statutes  prescribing  mode  of,  generally  directory      ....    140 

irregularities  in,  not  to  prejudice  voter 140 

proof  required  of  unregistered  voter 141 

application  of  registry  law  to  special  elections 193 

complete 370 

of  legal  voter,  may  be  compelled  by  mandamus 420 

not  conclusive  of  right 470 


INDEX.  597 

REGULATION,  Section. 

must  not  impair  constitutional  rights 44-48 

Legislature  may  provide 58 

may  require  reasonable  notice  of  election 58 

but  cannot  unreasonably  postpone    or    embarrass  right  of 

elector 58,59,60 

limited  to  prescribing  necessary  and  reasonable  txiles   ...      61 

as  to  casting  vote  in  case  of  tie 63 

right  to  vote  may  be  limited  to  males 63 

may  be  extended  to  females 63 

must  be  reasonable 126 

must  regulate,  and  not  impair,  the  right  to  vote 126 

registration  laws  constitutional 127-134 

may  operate  only  in  certain  cities  and  villages  ....     128 
distinction  between  regulation  and  subversion  of  right     .     129 
validity  of  acts  requiring  registration  prior  to  day  of  elec- 
tion      130,131 

conflicting  decisions 132 

weight  of  authority  sustains  validity  of  such  acts  .     .     .     132 

all  regulations  must  be  reasonable 133 

decision  in  Massachvisetts 134 

provisions  of  registry  law  cannot  be  disregarded     .     .     .     135 

denial  of  right  of  registration 136-138 

mode  of  conducting  registration 139 

notice 139 

change  of  place 139 

statutes  prescribing  mode  of  proceeding  generally  direct- 
ory       140 

legal  voter  not  prejudiced  by  irregularities 140 

proof  required  of  unregistered  voter 141 

nature  and  extent  of  power  of  Congress  to  prescribe  regula- 
tions      143 

constitutionality  of  enforcement  act 143 ,144 

implied  power  of  Congress  over  Federal  elections     .     .     .  145, 146 

statutory,  necessary 147 

of  election  of  Senators  in  Congress 148, 149 

mode  of  conducting  such  election «...     150 

act  of  July  25,  1866 151, 153 

time  and  place  of  all  elections  must  be  prescribed     ....     153 
invalidity  of  statutes  authorizing  a  soldier  to  vote  while  ab- 
sent from  his  residence 153, 157 

time  and  place  are  of  the  substance 176 

notice 177-188 

when  the  prescribed  notice  is  necessary,  and  when  not     .  178-181 
distinction  between  regular  and  special  election  as  to  notice 
required 183-185 


598  INDEX. 

REGULATION  (continued),  Section, 

power  of  Governor  to  fix  time  and  place  of  holding  election 

for  Representative  in  Congress 186 

time  and  place  of  such  election  must  be  fixed  by  a  competent 

authority 186,  IS: 

power  of  military  Governor 18  > 

eflfect  of  change  in  Congressional  district 189, 190 

validity  of  act  of  June  25,  1842 191 

power  of  Congress  to  require  election  by  districts     .     .     .  191, 192 

application  of  registry  law  to  special  elections 193 

"  general  election,"  meaning  of  the  phrase  considered   .     .  194, 193 

mode  of  conducting  special  elections 19G 

what  questions  may  be  submitted  to  popular  rote    ....     197 

local-option  laws 198-200 

return  of  votes  after  time  prescribed 201 

effect  of  unconstitutional  police  regulations 240 

REJECTION, 

of  entire  poll,  rule  asto 423, 424 

REMEDY, 

quo  warranto,  common-law  jurisdiction 369 

mandamus  to  compel  canvassers  to  determine  and  certify  re- 
sult        384,385 

no  jurisdiction  in  equity  to  enjoin  holding  of  an  election  .  .  386 
injunction  not  allowed  to  restrain  counting  of  illegal  votes  .  387 
but  may  issue  to  restrain  the  receipt  of  illegal  votes  .  .  .  388 
will  not  lie  to  restrain  recording  of  abstract  of  votes  on  ground 

of  fraud 389 

mandamus  in  State  courts  to  compel  canvass  of  votes  cast  for 

Representative  in  Congress 390 

trial  by  jury  not  allowed 391,  392 

quo  warranto,  when  issued  at  common  law 393 

mode  of  proceeding 394 

right  of  elector  to  contest,  given  by  statute,  does  not  oust  ju- 
risdiction in  quo  warranto 395 

quo  warranto  not  granted  merely  upon  showing  that  illegal 

votes  have  been  received 396 

discussion  as  to  proper  remedy  in  various  cases   ....  397-412 

remedy  by  mandamus  and  by  quo  warranto 397-400 

mandamtis  to  compel  county  officer  to  keep  office  at  county 

seat 401 

mandamus  not  granted  when  there  is  another  adequate  and 

specific  remedy 402,  403 

nor  to  oust  the  incumbent  of  an  office 404 

nor  to  control  the  performance  of  judicial  duties      .     .     .  405,  416 
but  is  sometimes  granted  to  compel  swearing  in  of  person 
elected 406 


INDEX.  599 

REMEDY  (continued).  Section, 
or  to  compel  recognition  of  person  adjudged  elected  .  .  406,  409 
will  lie  to  compel  discharge  of  purely  ministerial  duties  .  406-411 
mandamus  to  compel  appointment  in  certain  cases  ....  410 
also  to  compel  canvass  in  accordance  with  original  and  gen- 
uine returns 412 

no  answer  to  writ  to  show  that  returns  are  irregular    .     .     .     413 
granting  or  refusal  of  writ  discretionary  with  the  court    .     .     414 

office  of  the  writ  of  mandamus 415 

decision  of  board  of  canvassers  conclusive  on  collateral  pro- 
ceeding      417 

csertificate  of  election  issued  under  mandamus  not  conclu- 
sive       418,419 

will  lie  to  compel  registration  of  legal  voter 420 

not  generally  issued  to  compel  certificate  showing  election  of 

particular  person •••     421 

general  rules  stated 422, 423 

for  illegal  corporate  elections 671 

REPRESENTATION, 

minority •••...    212 

REPRESENTATIVES, 

election  of,  see  Appendix,  p.  541. 

State  no  power  to  fix  qualifications  of,. 826 

RES  ADJUDICATA, 

what  not  binding  on  Congress  ...........  457o 

RESIDENCE  (see  Appendix,  p.  557), 

a  qualification  for  voting 87 

defined 88 

in  United  States  navy  yard,  arsenal,  or  the  like 89 

of  soldiers 00,91 

within  Indian  or  military  reservation .      92, 93 

change  of 94, 95 

temporary  removal  from 96-100 

synonymous  with  domicile 97 

of  students  in  college 101-103 

importance  of  question  of  intention 102, 103 

of  paupers  in  a  public  almshouse 104 

of  vagrants 104a 

intention  to  remain  at  a  given  place 105 

evidence  of  declarations 106 

laws  authorizing  voting  while  absent  from,  invalid  .     •     .  153, 157 

statements  of  voter  as  to,  may  be  proven 21)8 

abroad,  representing  the  United  States  Government     ^     .     .     325 
absence  while  discharging  duties  of  pubUc  office       ....     334 

character  of,  required 343 

by  statute  in  Maryland 96,  note 


600  INDEX. 

RESIGNATION,  Section, 

acceptance  of,  not  necessary 353 

RETURN  (see  Impeachment), 

conclusive  upon  canvassers 2C2,  366 

amending,  under  law  of  Massachusetts 371 

and  election  papers  may  be  impeached  upon  quo  warranto     .  503 

parol  evidence  admissible  to  impeach 503 

must  be  signed 508 

held  admissible  for  some  purposes  though  unsigned      .     .     .  509 
canvass  in  accordance  with  original,  may  be  compelled  by  man- 
damus    413 

no  answer  to  writ  of  mandamus  to  show  irregularity  in     ,     ,  413 

correction  of  final,  by  reference  to  primary 513 

absence  of  oath  will  not  vitiate  return 514 

rule  as  to  setting  aside 515 

illustrations 515-517 

distinction  between  rejecting  return  and  setting  aside  election  515 

failure  of  oflBcers  of  one  of  several  precincts  to  make     .     .     .  532 

proof  of  alteration  of 526 

return,  if  free  from  fraud,  the  best  evidence;  but  may  be  im- 
peached      569,  570 

nature  of  impeaching  proof  required 571 

effect  of  rejecting  return 571 

fraudulent  return  must  fall  to  the  ground 571 

dangers  attending  rejection  of  return 571 

character  of  parol  proof  which  may  be  admitted      ...  673,  573 

fraud  by  oflBcers  and  by  other  persons 574 

circumstantial  evidence  tending  to  show  fraud 675 

effect  of  proof  of  fraud  which  does  not  change  result  .     .     .  576 

check  list  as  evidence 677 

not  necessary  to  show  that  oflBcers  participated  in  fraud  .     .  578 

evidence  aliunde  the  return 578 

what  acts  of  election  officers  will  constitute  fraud   ....  679 
presence  of  unauthorized  persons  at  the  place  of  canvassing 

votes 580 

return  not  rejected  on  account  of  illegal  votes  received  if  they 

did  not  change  the  majority 581 

proof  that  vote  cast  was  largely  in  excess  of  number  of  legal 

voters 583 

other  circumstantial  evidence  of  fraud 683 

fraudulent  naturalization  certificates    .•• 584 

REVOCATION, 

of  commission .•••••••••  807 

RIGHT  TO  VOTE  (see  Suffrage), 

cannot  be  impaired  by  regulations    .........  136 


DTDBX.  601 

s. 

SAMPLE  BALLOTS,  Sectton. 

printing  and  distribution  of 710 

voted  by  mistake,  effect  of..... 711 

SENATORS, 

election  of,  see  Appendix,  p.  640. 

regulation  of  elections  of • 148-150 

vacancy  in  office  of... 860 

SENTENCE, 

when  a  disqualification 120 

SHAREHOLDERS  (see  Stock), 

govern  corporations 641 

entitled  to  one  vote  for  each  share  unless  otherwise  provided    643 

qualifications  for  voting 643 

interest  of,  no  disqualification 648 

limitation  of  this  rule 643 

rights  of 644 

right  to  vote  not  limited  to  natural  persons 645 

corporate  transfer  book  as  evidence  of  title 647, 648 

rights  and  duties  of  trustees 649 

contract  of  membership,  when  complete 650 

meetings  of,  mode  of  conducting 651 

notice  of  meeting ..    652 

how  given ■ ,    653 

may  be  by  what 653,  654 

mandamus  to  compel  calling  of  meeting  of 654,  655 

adjournment  of  meeting  of 657 

validity  of  meeting  held  beyond  bounds  of  State  ....  658, 659 

voting  by  proxy  unknown  at  common  law      ......    660 

but  now  generally  recognized 660 

SOLDIERS, 

residence  of 90,91 

cannot  be  authorized  to  vote  while  absent  from  place  of  resi- 
dence     153,157 

interference  by 552 

surrounding  polls  by 553 

stationing  same  in  vicinity  of 654 

stationed  near  voting  place,  misconduct  of 555-557 

calling  out  on  election  day 568 

SOVEREIGNTY  (see  note  1,  §  13), 

have  the  people,  by  constituting  the  electors,  surrendered  the 
sovereignty 24 


602  INDEX. 

SOVEREIGNTY  (continued),  Section. 

view  of  Supreme  Court  of  Pennsylvania  in  case  of  Wells  v. 
Bain,  to  the  effect  that  the  sovereignty  still  resides  in  the 
entire  citizenship 25 

the  same  view  expressed  in  Anderson  v.  Baker,  by  Supreme 
Court  of  Maryland 26 

an  investigation  of  the  question  from  a  practical  standpoint      27 

same  subject  continued 28 

is  the  body  politic  sovereign  only  in  theory,  or  is  it  also  sov- 
ereign as  a  practical  fact 29 

same  subject  continued 30 

the  right  to  fix  the  qualifications  of  voters  is  in  the  people  of 
the  respective  States,  subject  to  limitation  contained  in  Fif- 
teenth Amendment 31 

qualifications  of  electors  determined  by  the  people  in  consti- 
tutional conventions 32 

power  of  the  people  to  limit  the  discretion  of  voters  in  the 
choice  of  persons  to  fill  offices 33 

inability  of  the  people  to  withdraw  political  power,  except  in 
the  manner  provided  by  Constitution 34 

exercise  of  the  elective  franchise  by  a  portion  of  the  commu- 
nity a  fair  and  useful  restriction 35 

SPECIAL  ELECTIONS. 

application  of  registry  law       ...» 193 

mode  of  conducting ••...    196 

STATE  (see  Foreign  State), 

what  constitutes 13,  note  1 

has  power  to  fix  qualifications  of  voters  generally    ....      36 
has  power  to  fix  qualifications  of  voters  for  Presidential  elect- 
ors   36 

power  of,  to  fix  qualifications  of  voters  limited  by  Fifteenth 

Amendment  to  the  United  States  Constitution  .  .  .  .  36,  38 
legislation  of,  may  be  supplemented  by  act  of  Congress  .  .  42 
has  not  exclusive  power  to  punish  frauds  in  Federal  elections      43 

may  limit  right  to  vote  to  male  citizens 63 

naay  also  extend  it  to  women 63 

laws  of,  rules  of  decision  in  Congress 457, 461 

statute  regulating  elections  not  binding  on  Congress     .     .     .     519 
tribunals,  decisions  of  prima /acie  evidence     ......    520 

STATUTES, 

what  are  mandatory 227-229 

and  what  are  directory 227-229 

relating  to  elections,  construction  of 243 

mandatory 295-297 

to  be  liberally  construed 431 


INDT«X.  608 

STATUTES  (continued),  Section. 

of  State,  not  binding  upon  Congress 519 

importance  of  the  subject 672,  673 

evils  of  crowding  the  polling  places 674 

multiplication  of  voting  precincts 675 

complete  registration 676 

non-partisan  election  boards 677 

presence  of  witnesses  representing  all  parties 677 

counting  of  votes  without  delay 678,  679 

protection  of  voters  against  intimidation  and  violence       .     .     680 

fraudulent  ballots 681 

regulation  as  to  size  and  form  of  ballot       .......     681 

summary  of  necessary  provisions 682 

existing  statutes 683-689 

act  of  Kansas  Legislature  to  prevent  crowding  at  the  polls     .     684 
provisions  against  counting  ballots  so  printed  as  to  mislead 

voters 690 

STOCK, 

equitable  assignment  of 645 

qualification  of  rule  that  legal  holder  of  may  vote  upon  same    646 

corporate  transfer  book  as  evidence  of  title 647, 648 

STOCKHOLDERS  (see  Shareholders). 

SUFFRAGE  (see  Elective  Franchise;  Appendix,  p.  531;  Votb, 
THE  Right  to), 

defined • 1 

the  object  of  suffrage .."....        2 

the  right  to  vote  not  of  necessity  connected  with  citizenship        3 

suffrage  not  a  natural  right ^  46, 54 

the  doctrine  as  stated  in  the  case  of  Anderson  v.  Baker      .     .        5 

as  stated  in  the  case  of  Blair  v.  Ridgely 6 

the  right  to  vote  distinguished  from  the  right  to  practice  a 

profession  or  calling 7,  54, 55 

electors  may  be  disfranchised  by  constitutional  provision      .        8 
the  American  and  English  theories  of  the  right  to  vote  distin- 
guished             9 

in  the  United  States  the  right  of  suffrage  depends  upon  the 

will  of  the  people 10 

historical  outline  of,  in  the  United  States 8,  note  7 

right  may  be  limited  to  male  citizens 63 

but  may  by  constitutional  provision,  or  sometimes  by  legislar 

tive  act,  be  extended  to  females 63 

but  only  upon  same  terms  and  conditions  as  are  applied  to 

males 63 

and  cannot  be  extended  by  statute  to  females  when  construct- 
ively limited  to  males  by  constitutional  provision      .     .     .    63a 


604  IlfDEX. 

SUFFRAGE  (continued),  Section, 

construction  of  Fourteenth  Amendment  to  the  Constitution 

of  the  United  States 64 

in  what  States  women  may  vote 64a 

Constitution  of  New  Jersey  of  1776  permitting  famale  suffrage    64b 


T. 

TAX, 

payment  of  as  a  qualification  for  voting 107, 110 

mode  of  assessing 108, 10»,  113,  113 

payment  by  agent 110 

persons  exempted      ...• Ill 

TENURE, 

of  office 848-368 

of  office  during  good  behavior 353 

right  to  hearing  before  removal  from  office 354 

commission  of  crime  does  not  ipso  facto  vacate  office  .     .     .  354 

power  of  removal 855 

appointment  or  election  to  offioe  creates  no  contract  for  any 

particular  period •  868 

of  officers  of  corporation 670 

TERRITORY, 

power  of  Congress  to  legislate  for 45 

foreign,  acquired,  organization  of  necessary  to  valid  Federal 

election  in 244 

Federal  election  in,  in  anticipation  of  admission  into  Union  .    245 
State  formed  of  part  of,  effect  upon  remainder    •    .     *    •    .    246 

TEST  OATH  (see  Evidence), 

nature  of,  that  may  be  required   ••• 56 

TIE, 

casting  vote  in  case  of • 62 

deciding  by  lot 210, 211 

TIME  OF  ELECTION, 

must  be  fixed  by  law •..    153 

is  of  the  substance 176 

adjournment • 160, 166 

premature  closing  of  polls 161 

keeping  polls  open  after  lawful  hours 162, 165 

power  of  governor  to  fix,  for  election  of  Representative  in  Con- 

gresa 186 

provisions  of  law  affecting,  generally  mandatory     .     ,     .  228,  229 
corporate  election  must  be  held  at  reasonable      .....    656 


INDEX  605 

TRIBUNALS,  Section. 

special 369 

office  of  Governor 369 

jurisdiction  of  Legislature 870 

mode  of  proceeding  before  legislative  body 370 

contestant  not  absolutely  necessary 371 

construction  of  acts  of  Congress  regulating  mode  of  proceed- 
ing    372 

such  acts  directory  only 373 

certificate  of  election  prima  facie  only 374 

sitting  member  not  entitled  to  vote 375,  376 

jurisdiction  of  the  House  exclusive 877 

jurisdiction  of  special  tribunals 878 

courts  may  compel  them  to  act  by  mandamus 379 

members  thereof  must  be  disinterested 379 

power  of  legislative  bodies  to  judge  of  the  election  and  quali- 
fication «t  their  own  members,  when  exclusive      ....  380 
jurisdiction  of  courts  in  absence  of  special  provision  of  law  .  381 
such  jurisdiction  extends  to  a  contest  for  the  eflBce  of  Gov- 
ernor of  a  State 383 

but  not  to  control  the  Governor  in  the  performance  of  oflBcial 

functions 383 

u. 

UNITED  STATES  GOVERNMENT, 
power  of,  see  Congress. 
power  of  self-protection      ..••••••••••      48 

V. 

VACANCY, 

in  office,  see  OrnCE. 

VAGRANTS, 

residence  of      ..••.••••••••••.  104a 

VERIFICATION, 

of  grounds  of  contest •••••••.    838 

VIOLATION, 

of  election  laws,  see  Prosecutions. 

VIOLENCE, 

effect  of,  towards  election  officers 241 

fairness,  purity  and  freedom  of  elections  must  not  be  inter- 
fered with 560 

slight  disturbances  wil'  not  vitiate  election     .     .     ,     .     ,  550,  551 


t>06  INDEX. 

VIOLENCE  (continued),  Section. 

rule  stated ,... 551 

interference  by  the  military 553 

surrounding  polls  by  military  force 553 

stationing  troops  in  the  vicinity  of  the  election 554 

misconduct  of  soldiers  stationed  near  voting  place  .  .  .  555-557 
duty  of  House  of  Representatives  to  inquire  into  charges  of 

intimidation .  558, 559 

violence  and  intimidation  affecting  a  part  only  of  the  district 

in  which  the  election  was  held ,     ,     .     .  560,  561 

general  rules  upon  the  subject  stated 562-564 

it  must  be  shown  that  the  violence  and  intimidation  affected 

result 565 

evidence  of  intimidation 566 

importance  of  preserving  freedom  of  elections 567 

calling  out  militia  on  election  day 568 

protection  of  voter  against 680 

VIVA  VOCE  VOTING, 

rights  of  deaf  mutes ......••.    117 

VOTE,  THE  RIGHT  TO, 

suffrage  defined 1 

the  object  of  suffrage 2 

the  right  to  vote  not  of  necessity  connected  with  citizenship  .  3 

suffrage  not  a  natural  right 4,  46,  54 

the  doctrine  as  stated  in  the  case  of  Anderson  v.  Baker  ...  5 

as  stated  in  the  case  of  Blair  v.  Ridgely 6 

the  right  to  vote  distinguished  from  the  right  to  practice  a 

profession  or  calling 7, 54,  55 

electors  may  be  disfranchised  by  constitutional  provision  .     .  8 
the  American  and  English  theories  of  the  right  to  vote  distin- 
guished       9 

in  the  United  States  the  right  of  suffrage  depends  upon  the 

vrill  of  the  people 10 

who  are  the  people 11 

declarations  upon  the  subject  contained  in  the  Declaration  of 

Independence  and  in  preambles  to  constitutions    ....  1 

the  theories  of  early  speakers  and  writers 13 

conclusion  from  the  foregoing 14 

arguments  of  counsel  in  Chis'iolm,  Ex'r,  V.  State  of  Georgia  .  15 
views  of  the  Supreme  Court  of  the  United  States  in  Penhallow 

r.  Doane's  Adm'rs 16 

doctrine  as  stated  by  Judge  Taney  in  Dred  Scott  v.  Sanford  .  17 
at  the  time  of  the  formation  of  the  Union  the  people  were  the 

citizens,  independent  of  age  or  sex 18 


IXDBX.  607 

VOTE,  THE  RIGHT  TO  (continued',,  Section. 

how  did  the  Constitution  become  binding  upon  the  people     .  19 

the  theory  of  consent  by  ratification 20 

view  of  the  Supreme  Court  of  the  United  States  in  Inglis  v. 

Trustees  of  Sailor's  Snug  Harbor 31 

view  of  the  same  court  in  Ware  v.  Hylton 33 

the  provisions  of  constitutions  binding  upon  all  citizens,  irre- 
spective of  age  or  sex 33 

have  the  people,  by  constituting  the  electors,  surrendered  the 

sovereignty 24 

view  of  Supreme  Court  of  Pennsylvania  in  case  of  Wells  v. 
Bain,  to  the  effect  that  the  sovereignty  still  resides  in  the 

entire  citizenship 25 

the  same  view  expressed  in  Anderson  v.  Baker,  by  Supreme 

Court  of  Maryland 26 

an  investigation  of  the  question  from  a  practical  standpoint  .  27 

same  subject  continued 28 

is  the  body  politic  sovereign  only  in  theory,  or  is  it  also  sover- 
eign as  a  practical  fact 29 

same  subject  continued 30 

the  right  to  fix  the  qualifications  of  voters  is  in  the  people  of 
the  respective  States,  subject  to  limitation  contained  in  Fif- 
teenth Amendment 31 

qualifications  of  electors  determined  by  the  people  in  constitu- 
tional conventions 33 

power  of  the  people  to  limit  the  discretion  of  voters  in  the 

choice  of  persons  to  fill  offices 33 

inability  of  the  people  to  withdraw  political  power,  except  in 

the  manner  provided  by  Constitution 34 

exercise  of  the  elective  franchise  by  a  portion  of  the  commu- 
nity a  fair  and  useful  restriction 35 

"VOTERS  (see  Qualifications;  Disqualifications), 

right  to  vote  to  be  determined  by  reference  to  State  law    ,     .  36 

qualifications  fixed  by  States 36 

not  voting,  generally  bound  by  result 167-170 

erroneous  rule  affecting  class  of 235 

not  prejudiced  by  mistakes  of  election  officers     ....  236-239 

refusal  to  administer  oath  to 287 

corrupt  denial  of  riglit  of 289 

seasonable  listing  of  names  of 297 

duty  of,  to  furnish  evidence  as  to  his  right 298 

statements  of,  as  to  residence 298 

registration  of  legal,  may  be  compelled 4^0 

when  necessary  to  prove  number  of 463 

proof  of  number  of 463-466 


608  INDEX. 

VOTERS  (continued),  Section. 

cannot  be  compelled  to  divulge  for  whom  he  voted  .     .     .  489-491 

not  protected  if  an  illegal 492-494 

may  waive  his  privilege 493 

intent  of,  explained • 530,  531 

VOTES, 

counting  of  illegal,  cannot  be  enjoined 887 

receipt  of  illegal,  may  be  restrained 388 

recording  of  abstract  of  cannot  be  restrained 389 

disposition  of  illegal,  in  absence  of  proof  showing  for  whom 

cast 495 

when  new  election  should  be  ordered 496 

received  and  counted,  what  character  of  proof  will  vitiate     .     499 

proof  of,  by  secondary  evidence 513 

rule  as  to  proving,  when  return  has  been  rejected     ....     521 
not  necessary  to  show  intentional  wrong  on  the  part  of  oflScer 

rejecting 527 

offer  to  vote,  when  considered  performance     .  527a,  527&,  169,  note 
presumption  of  legality 466a 

VOTING, 

right  of,  see  Appendix;  Cumxjlativb  Voting;  Suffeaqe;  Elect- 
ive Franchise. 
in  wrong  precinct • 134 

VOTING  COMPARTMENTS 713 

votes  required  to  be  prepared  in 715 

VOTING  MACHINES, 

use  of 728 

how  constructed  and  operated 729 

VOTING  PLACE, 

change  of 158, 159 

number  of 284 

fraudulent  refusal  to  establish 285, 286 

VOTING  PRECINCTS  (see  Peecincts). 

w. 

WAGER, 

upon  result  of  election 218, 219 

WITNESS, 

power  of  legislative  body  over      ....•••..  637,  638 
refusal  of,  to  answer  questions 639 

WOMEN, 

right  to  vote     .....•• 28 


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